Informed Publics, Media and International Law 9781509930418, 9781509930449, 9781509930425

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INFORMED PUBLICS, MEDIA AND INTERNATIONAL LAW This book considers the significance of informed publics from the perspective of international law. It does so by analysing international media law frameworks and the mediatization of international law in institutional settings. This exposes the complexity of the interrelationship between international law and the media, but also points to the dangers involved in international law’s associated and increasing reliance upon the mediated techniques of communicative capitalism – such as publicity – premised upon an informed international public whose existence many now question. The book explores the ways in which traditional regulatory and analytical categories are increasingly challenged, revealed as inadequate or bypassed, but also assesses their resilience and future utility in light of significant technological change and concerns about fake news, the rise of big data and algorithmic accountability. Furthermore, it contends that analysing the imbrication of media and international law in the current digital transition is necessary to understand the nature of the problems a system such as international law faces without sufficiently informed publics. The book argues that international law depends on informed global publics to function and to address the complex global problems which we face. This draws into view the role media plays in relation to international law, but also the role of international law in regulating the media, and reveals the communicative character of international law.

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Informed Publics, Media and International Law Daniel Joyce

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2020 Copyright © Daniel Joyce, 2020 Daniel Joyce has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Joyce, Daniel, author. Title: Informed publics, media and international law / Daniel Joyce. Description: Oxford, UK ; New York, NY : Hart Publishing, an imprint of Bloomsbury Publishing, 2020.  |  Includes bibliographical references and index. Identifiers: LCCN 2020027078 (print)  |  LCCN 2020027079 (ebook)  |  ISBN 9781509930418 (hardback)  |  ISBN 9781509930425 (ePDF)  |  ISBN 9781509930432 (Epub) Subjects: LCSH: Mass media—Law and legislation.  |  Communication—International cooperation. Classification: LCC K4240 .J69 2020 (print)  |  LCC K4240 (ebook)  |  DDC 343.09/9—dc23 LC record available at https://lccn.loc.gov/2020027078 LC ebook record available at https://lccn.loc.gov/2020027079 ISBN: HB: 978-1-50993-041-8 ePDF: 978-1-50993-042-5 ePub: 978-1-50993-043-2 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

For Katie and Scarlett

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ACKNOWLEDGEMENTS The Faculty of Law at UNSW Sydney is a collegial and progressive academic home and I want to thank my colleagues and students. The themes and concerns of this research have also been shaped by time spent in Cambridge, New York, Helsinki and Florence. I would like to acknowledge Susan Marks for her inspiration and support over many years. Anne Orford and Martti Koskenniemi have also been wise and generous mentors. Ben Golder and Fleur Johns are great friends and colleagues. They provided critical encouragement and feedback when the book was first proposed. A conversation with Sundhya Pahuja helped to catalyse the central argument. Rosie Rand was a terrific research assistant in challenging circumstances. I am indebted to you all. I would like to thank a number of people who have helped me with their advice and support, including Frédéric Mégret, Guglielmo Verdirame, Kimberley Trapp, Isabelle Van Damme, Kirsty Hughes, Stephen Humphreys, Kevin Gray, Sarah Joseph, Lesley Hitchens, Katherine Biber, Wouter Werner, Charlotte Peevers, Kath Albury, Justine Nolan, Bronwen Morgan, Andrew Byrnes, Heng Wang, Kathy Bowrey and Weihuan Zhou. In the final phase of writing Jessie Hohmann, Alex Mills, Vicki Sentas, Felicity Bell, Monika Zalnieriute and Caroline Compton generously read and commented on draft chapters. Lewis Rumiz helped me to find my way and to finish the book. I have had a wonderful experience with Hart Publishing. I would like to thank my editor Roberta Bassi; the anonymous reviewers who gave such useful ­critical feedback; Rosie Mearns; my copy editor Vicki Hillyard; and production editor Linda Staniford. I really appreciate your support and guidance. I also want to express my gratitude to Richard and Monica Allan, Emily and Paul Christensen, Paul Curnow and Kate Wright Curnow, Ann Curthoys and John Docker for their friendship and kindness. Most of all I want to acknowledge the support of my family. My mother Monica Joyce has always been there for me. My wife Katie Dyer and my daughter Scarlett Joyce have shared in this adventure. This book is dedicated to them both with all my love. Daniel Joyce Sydney, May 2020

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TABLE OF CONTENTS Acknowledgements����������������������������������������������������������������������������������������������������� vii Introduction��������������������������������������������������������������������������������������������������������������������1 I. Media and Mediatization���������������������������������������������������������������������������3 II. The Imbrication of Media and International Law��������������������������������10 III. Structure�����������������������������������������������������������������������������������������������������11 1. Informed Publics��������������������������������������������������������������������������������������������������14 I. Informed Publics���������������������������������������������������������������������������������������15 II. Public Opinion and International Law��������������������������������������������������20 III. Cold War Debates Over Information and Media���������������������������������26 IV. Contemporary Challenges�����������������������������������������������������������������������28 V. Summary����������������������������������������������������������������������������������������������������32 2. Free Publics������������������������������������������������������������������������������������������������������������34 I. Freedom of Expression�����������������������������������������������������������������������������35 II. Limits to Media Freedom�������������������������������������������������������������������������40 III. Licensing����������������������������������������������������������������������������������������������������42 IV. Defamation and Insult Laws��������������������������������������������������������������������43 V. Contempt and the Protection of Sources�����������������������������������������������45 VI. National Security���������������������������������������������������������������������������������������47 VII. Privacy��������������������������������������������������������������������������������������������������������49 VIII. Media Pluralism����������������������������������������������������������������������������������������52 IX. International Trade Law���������������������������������������������������������������������������54 X. Summary����������������������������������������������������������������������������������������������������61 3. Endangered Publics����������������������������������������������������������������������������������������������63 I. Incitement, Hate Speech and Propaganda���������������������������������������������64 II. International Criminal Law���������������������������������������������������������������������72 III. International Humanitarian Law������������������������������������������������������������79 IV. Information Intervention, Cybersecurity and Computational Propaganda������������������������������������������������������������������������������������������������83 V. Summary����������������������������������������������������������������������������������������������������88

x  Table of Contents 4. Digital Publics�������������������������������������������������������������������������������������������������������90 I. Telecommunications�����������������������������������������������������������������������������������91 II. Internet Governance������������������������������������������������������������������������������������93 III. A Human Rights Approach������������������������������������������������������������������������99 IV. Data Governance���������������������������������������������������������������������������������������104 V. Platform Governance��������������������������������������������������������������������������������110 VI. Summary�����������������������������������������������������������������������������������������������������115 5. Publicity�������������������������������������������������������������������������������������������������������������� 116 I. Institutional Publicity��������������������������������������������������������������������������������117 II. International Criminal Law����������������������������������������������������������������������126 III. Human Rights and Witnessing����������������������������������������������������������������131 IV. Summary�����������������������������������������������������������������������������������������������������137 6. The Critique of Publicity���������������������������������������������������������������������������������� 139 I. Mediatization and Conflict�����������������������������������������������������������������������140 II. Visibility and Invisibility���������������������������������������������������������������������������143 III. Communicative Capitalism and Humanitarianism������������������������������149 IV. International Law, Media and Engaging Informed Publics�����������������155 V. Summary�����������������������������������������������������������������������������������������������������157 Conclusion����������������������������������������������������������������������������������������������������������������� 160 Bibliography���������������������������������������������������������������������������������������������������������������164 Index��������������������������������������������������������������������������������������������������������������������������179

Introduction For all its ubiquity and power, the media has to date been the subject of surprisingly limited attention within international legal scholarship. An initial search for ‘the media’ in the indexes of international law texts reveals little. Yet, digging deeper, it is clear that international law has considered the media’s role both as an object of regulation and as an influence on its own development and structure. New technologies for communication, such as radio and the telegraph, were in their time seen as enabling forms of inter-connection in international society, offering greater co-ordination and understanding across traditional divides of geography and culture. Some argued that these developments would create opportunities for the advancement and growth of international law. In 1910, the international lawyer A Pearce Higgins wrote of international law itself as propaganda, in an era when the concept of propaganda had yet to be seen in purely negative terms: The apostles of the propaganda of International Law must of necessity be statesmen and lawyers, but all classes of the community in every nation, journalists, clergy, merchants and artisans, must co-operate, for there is need for a fuller knowledge of the existing rules of law so that their value may be better appreciated.1

At this time international law was aware of the role for the media in education, in the formation of public opinion. The relationship of the media and international law, when seen through the prism of public opinion and notions of propaganda, is in fact revealed as a constant theme in the modern evolution of public international law. It is a theme which featured in Elihu Root’s opening editorial of the first American Journal of International Law and remained an important concern throughout the twentieth century.2 Attracting the attention of distinguished scholars such as Hersch Lauterpacht in the middle of the century, it was then shaped by the Cold War and debates over the right to communicate, before now re-emerging as a theme in debates over the costs of globalisation and in the context of the technological changes transforming the flow and quality of information and our means of communication. These contemporary realities suggest the media’s connection to freedom of expression, but alternatively remind us of new abuses of media power made 1 A Pearce Higgins, The Binding Force of International Law (Cambridge, Cambridge University Press, 1910) 41. 2 Elihu Root, ‘The Need of Popular Understanding of International Law’ (1907) 1 The American Journal of International Law 1.

2  Introduction possible by developing technologies. Such developments prompt a dual enquiry into the media’s relationship with international law which goes beyond the immediate historical juncture. This draws into view the importance of reconsidering the regulation of media and, in addition, beginning to address the specificity of new forms of digital media, while simultaneously revealing international law’s reliance upon the media in communicating its objectives and norms, and in its functioning as a system. Despite the long-standing presence of this role of the media, for a variety of reasons which I will examine, international law as a discipline has often shied away from formal recognition of a relationship with the media. It has appeared to be torn between desiring media recognition and assistance, and fearing popularisation, misunderstanding or damage to the rule of law. In 1944 the international lawyer JL Brierly wrote that: ‘Unfortunately the practice of international law is a matter of which the layman sees little; it only rarely makes the frontpage news in the newspapers’.3 This was perhaps a lament for greater popular recognition, but also an assertion of (and pride in) technical expertise and professional identity.4 Yet in our own time when international law has been the subject of popular interest, it has been seen as both central to international life and ineffectual. Susan Marks has diagnosed this as reflecting an anxiety of influence that can perhaps be traced back to Brierly’s remarks. Marks notes: the anxiety of influence felt by international lawyers is not just a fear of irrelevance but a fear of relevance as well – not just a shock at the recognition of politics in law, but a shock at the recognition of law in politics.5

This anxiety of influence is revealed not only in the context of war and human rights concerns, but also in debates over the regulation of digital media platforms and the internet. This book considers the significance of informed publics from the perspective of international law. It does so by analysing international media law frameworks and the mediatization of international law in selected institutional settings. This exposes the complexity of the interrelationship between international law and the media, but also points to the dangers involved in international law’s associated and increasing reliance upon the mediated techniques of communicative capitalism – such as publicity – premised upon an informed international public whose existence many now question. Publicity’s promise of open, equal justice and participation is not experienced universally and in fact relies upon what Jodi Dean

3 JL Brierly, The Outlook for International Law (Oxford, Clarendon Press, 1944) 13. 4 An earlier example of this preference for positive, technical international law as opposed to more advocacy-driven calls for international law as ‘justice’ can be found in the work of Hans Kelsen: Hans Kelsen, The Legal Process and the International Order, The New Commonwealth Institute Monographs, Series A No 1 (London, Constable & Co Ltd, 1935) 11. 5 Susan Marks, ‘State-Centrism, International Law, and the Anxieties of Influence’ (2006) 19 Leiden Journal of International Law 339, 347.

Media and Mediatization  3 has termed communicative capitalism.6 We see this take contemporary form in digital media monopoly platforms such as Google and Facebook which international legal frameworks have largely failed to address. In examining this relationship between media and international law we must be attentive to the dangers of mediatization, the absence of meaningful regulation of much digital media with global reach and effect, but also to the potential value of protecting and fostering informed global publics. In the context of platform capitalism, traditional regulatory and analytical categories for media law are increasingly challenged, revealed as inadequate or bypassed. Exploring the relationship between international law and the media in this way also reveals much about the communicative character of international law. This can help connect emerging scholarship on mediatization, which has tended to focus mainly on its political and social effects, with the law. In turn this can help us to understand the nature and also significance of international law as it operates in a range of modes – as a system of rules, as argument, as communicative practice and means for global ordering, but also in turn as an imaginary – a powerful and sadly often exclusionary discourse for making and remaking the world. Most importantly, analysing the imbrication of media and international law in this current digital transition is necessary to understand the nature of the problems a system such as international law faces without sufficiently informed publics. International law is ultimately reliant upon the engagement and participation of informed publics. The media has often been a vehicle, or even a proxy, for guaranteeing such participation, but its effects have been mixed and now its role and forms are undergoing significant change and contestation.

I.  Media and Mediatization To begin this broader examination of the relationship between international law and the media it is necessary then to consider more fully the media’s significance, to reflect on different accounts of media power and the profound changes affecting the contemporary media landscape. To analyse the multifaceted, and at times conflictual, entanglement of media and international law, we first must better understand the media itself. Given the rapid pace of technological change and the economic woes presently facing the traditional media industries this is no easy task. My contention is that despite these changes the media remains a category with analytical purchase and that we need to consider its historical as well as its contemporary significance, to better evaluate what is at stake in those changes and to set the parameters for future debates about the kinds of informed publics we desire. 6 Jodi Dean, Blog Theory: Feedback and Capture in the Circuits of Drive (Cambridge, Polity Press, 2010).

4  Introduction The media will at times appear as a constant or stable category of analysis in this book (as will international law). To be able to analyse the complexities of their interrelationship it will be necessary occasionally to refer to both as seemingly fixed ‘things’, when in fact this is far from the case. International legal scholars, especially critically minded ones, are familiar with this issue, but it is perhaps necessary to briefly outline some of the ways in which the media both resists and extends efforts to define or reify it. The term ‘media’ first started to be commonly used in the United States in the 1920s, in the context of advertising, commercialisation of the press and new forms of mass communication.7 The common use of the term ‘media’ is noted in the Oxford English Dictionary as referring to: The main means of mass communication, esp. newspapers, radio, and television, regarded collectively; the reporters, journalists, etc., working for organizations engaged in such communication. Also, as a count noun: a particular means of mass communication.8

Raymond Williams has written of two distinct senses of the word ‘media’ – a technical sense and a social sense. In his account, ‘the technical sense of medium, as something with its own specific and determining properties … has in practice been compatible with a social sense of media in which the practices and institutions are seen as agencies’ for interests outside their own domain.9 It is in this latter sense that mass media has been understood, emphasising its role as purveyor of information, advertising or propaganda. The media theorist Nick Couldry also points to the social and political significance of the media, writing that ‘Media suffuse our sense – our various senses – of living in a world: a social world, an imaginative world, the world of politics and confrontation’.10 From this perspective the media, as a central communicative platform, process and institution, is pivotal to our perception and construction of the world we inhabit. I shall use the term ‘media’ to refer broadly to the phenomenon of mass communication, its various forms (including digital) and processes, the profession of journalism and the social institution of the media. It is useful to consider the conceptual diversity of media by reference to a series of overlapping contrasts that will recur throughout the remaining chapters. For example, the media can be dichotomised in some of the following ways: traditional media and digital media; news as against entertainment; public media and commercial media; professional media or citizen media; textual media and visual media. Yet another way of categorising media is in terms of its functions. There are the phases of media production, dissemination and reception. Traditionally these functions were separated, introducing a time element into the life

7 Oxford English Dictionary (online, draft revision 2001) ‘media’ (etymology). 8 Oxford English Dictionary (online, draft revision 2001) ‘media’ (n1 ‘simple uses’). 9 Raymond Williams, Keywords: A Vocabulary of Culture and Society (London, Fontana Press, 1983) 204. 10 Nick Couldry, Media, Society, World: Social Theory and Digital Media Practice (Cambridge, Polity Press, 2012) 1.

Media and Mediatization  5 of media products. However, clear boundaries between these three phases have been blurred by the instantaneous possibilities of digital media. John Thompson emphasises communication as a process of transmission, but concedes that this movement is not ‘entirely monological or one-way’.11 Indeed the collapsing of time and space in today’s globalised digital media places much greater emphasis on interactive and critical audiences. Nevertheless, the dimensions of time and space are still significant analytical referents. There is, for example, a division between global or transnational media, which extend beyond territorial and cultural boundaries, and local media, with their more indigenous audiences, concerns and content. Sometimes what is local to one context can be global in another, such as Bollywood or the New York Times. Other forms of mass media are conceived and organised specifically in terms of international or transnational audiences, such as the television networks of CNN and Al-Jazeera. Then there is the further distinction between state-funded and -controlled broadcasting by entities such as the BBC (with its overt public role, charter and responsibilities) and private media enterprises like Comcast and Alphabet Inc (with their responsibilities to shareholders and investors). In a context such as China the division between state control of media and private media companies is less apparent with strong traditions of state media censorship and propaganda exerting influence in both state media companies such as Xinhua and CCTV and rising digital giants such as Baidu. There is also evidence that there are considerable efforts being made to extend that influence beyond China, in an effort to match the public diplomacy initiatives of other powerful states.12 Increasingly we need to take account of the developing digital media, including social media, which is evolving, complex and ‘changes the space of social action’.13 Consequently any definition of the media needs to be dynamic and to account for the media’s institutional significance, and also its evolving social and political functions.14 Jacob Rowbottom argues the digital media transformation does not render institutional media powerless, but means that we need to broaden

11 John B Thompson, The Media and Modernity: A Social Theory of the Media (Cambridge, Polity Press, 1995) 25. 12 See, for example, Louisa Lim and Julia Bergin, ‘Inside China’s Audacious Global Propaganda Campaign’ The Guardian (7 December 2018), available at www.theguardian.com/news/2018/dec/07/ china-plan-for-global-media-dominance-propaganda-xi-jinping; Sean Mantesso and Christina Zhou, ‘China’s Multi-Billion Dollar Media Campaign “A Major Threat for Democracies” Around the World’ ABC News (8 February 2019), available at www.abc.net.au/news/2019-02-08/chinas-foreign-mediapush-a-major-threat-to-democracies/10733068; Li Yuan, ‘China’s Soft-Power Failure: Condemning Hong Kong’s Protests’ The New York Times (20 August 2019), available at www.nytimes.com/2019/08/20/ business/china-hong-kong-social-media-soft-power.html; Vivian Yang, ‘How Chinese Media is Going Global’ World Economic Forum (10 August 2015), available at www.weforum.org/agenda/2015/08/ how-chinese-media-is-going-global; Ryan Broderick, ‘Forget The Trade War: TikTok Is China’s Most Important Export Right Now’ BuzzFeed News (16 May 2019), available at www.buzzfeednews.com/ article/ryanhatesthis/forget-the-trade-war-tiktok-is-chinas-most-important-export. 13 Couldry, Media, Society, World (2012) 2. 14 Jacob Rowbottom, Media Law (Oxford, Hart Publishing, 2018) 21–24.

6  Introduction our understanding of the ‘multiple media sectors’ involved.15 Here the focus on traditional forms of news needs to widen to include the provision of interactive platforms for information and exchange. As Rowbottom notes, ‘Social media companies and search engines do not engage in traditional journalism, but they help organise and distribute the mass of information’ and thus can be understood as performing a critical media function.16 Our experience of digital media, such as social media platforms, can be connective, accelerated and at times harmful, alienating and overwhelming. We all have come to know the promises and perils of the internet, as it and rapid technological change in our time transform our sense of community, politics and possibility.17 The internet and its regulation have now become central to broader debates regarding freedom of and access to information, and the associated formation of publics. Such questions used to focus mainly upon freedom of expression and the democratic role played by the media, but now necessarily involve a wider range of regulatory frames and practices. Nick Couldry is cautious of the myth-making associated with analysis of technological change and the future, especially claims that the internet and digital media will lead to greater democracy, peace and ‘free’ information.18 He is also critical of rhetoric regarding media globalisation in terms of unification, arguing that there is ‘no single “world” of digital media’, but rather different contexts offer different realities with linguistic, developmental and technological inequalities in terms of media quality, access and censorship remaining significant issues.19 This analysis has significant implications for how we come to perceive the many publics of international law. Technological changes have brought a form of convergence, where various aspects of media are accessible in concentrated form through dominant platforms. But as with the globalisation of law such moves towards convergence are also accompanied by the experience of fragmentation and alienation. The development of the smart phone and the ‘internet of things’, driven by devices which cross platforms and are embedded in the everyday fabric of life, have all contributed to these dynamics. In taking a longer view of the significance of the media it is apparent that different forms have dominated in different eras and contexts. For example, radio has been a dominant media form in Africa, while television defined the experiences of Cold War audiences in North America. The rise of the internet and powerful social media platforms such as Facebook, Twitter or Weibo, along with devices like smart phones, threaten to displace both means of delivery, and in numerous contexts have already done so.



15 ibid

16 ibid.

31.

17 Couldry

(n 10) 5. 9. 19 ibid 10–11. 18 ibid

Media and Mediatization  7 Many people today consume their news online and often do so via social media, rather than through traditional forms such as newspapers, television and radio.20 Smart phones have been a significant part of that change as has the broader infrastructure of the internet. As Jack Linchuan Qiu, Melissa Gregg and Kate Crawford note, the ‘iPhone era is characterized by a remarkable regime of domination that exacerbates social inequality. At the same time … the iPhone – and similar ICT products – also stimulate and enable alternative developments toward change.’21 Despite important concerns regarding monopoly and dominance, smart phones such as the iPhone are driving patterns of consumption in the digital media sector and constitute a significant factor in terms of increasing internet coverage worldwide. The International Telecommunication Union (ITU) reports ‘that at the end of 2019, 53.6 per cent of the global population, or 4.1 billion people, are using the Internet’.22 However, a digital divide between the Global North and South persists.23 The media landscape is undergoing profound transformation, but this is not being experienced uniformly and indeed contributes to the uneven and unequal flow of information globally. When thinking of such changes we need to consider emerging forms of media, but also the material infrastructure which underpins their success. Digital forms of media have intensified the constitutive function of media in relation to sociality. Here we can think of the media as an institution or actor, but also in terms of its role in the meta process of mediatization. This can also help to focus attention on questions regarding media power and influence in shaping the international system, which can otherwise be difficult to ascertain. Mediatization is a concept which, I have argued earlier, has practical and analytical resonance for international law and human rights.24 Greater attention within international legal scholarship should be paid to the communicative dimension of law, and to the role of the media. Here it is useful to note the analysis of media power and its significance earlier offered by Amelia Arsenault and Manuel Castells

20 See further Nic Newman with Richard Fletcher, Antonis Kalogeropoulos, and Rasmus Kleis Nielsen, Reuters Institute Digital News Report 2019 (Oxford, Reuters Institute for the Study of ­Journalism, 2019). 21 Jack Linchuan Qiu, Melissa Gregg and Kate Crawford, ‘Circuits of Labour: A Labour Theory of the iPhone Era’ (2014) 12 tripleC 564, 568. 22 International Telecommunication Union, ‘Statistics’, available at www.itu.int/en/ITU-D/Statistics/ Pages/stat/default.aspx. 23 ‘In developed countries, most people are online, with close to 87 per cent of individuals using the Internet. In the least developed countries (LDCs), on the other hand, only 19 per cent of individuals are online in 2019. Europe is the region with the highest Internet usage rates, Africa the region with the lowest Internet usage rates’: International Telecommunication Union, ‘Facts and Figures 2019: Measuring Digital Development’, available at itu.foleon.com/itu/measuring-digital-development/ offline-population. 24 Daniel Joyce, ‘Human Rights and the Mediatization of International Law’ (2010) 23 Leiden Journal of International Law 507. See also Charlotte Peevers, The Politics of Justifying Force: The Suez Crisis, the Iraq War and International Law (Oxford, Oxford University Press, 2014) 145; Frédéric Mégret and Frederick Pinto, ‘“Prisoners’ Dilemmas”: The Potemkin Villages of International Law?’ (2003) 16 Leiden Journal of International Law 467, 468.

8  Introduction who argue that ‘In the network society, power relationships are largely defined within the space of communication … [and] global media groups are key social actors because they help to shape the social world by exerting control over issueframing and information gatekeeping’.25 ‘Mediatization’ is an analytical tool to help us to understand how media shapes and orders the social world and its experience in the everyday.26 My analysis of mediatization adds an international legal dimension to the media scholarship here, which has tended to focus less on the law and more on politics and government. Both media and international law operate to shape and construct our perception and experience of the world and contribute to international ordering and thinking. As Nick Couldry and Andreas Hepp argue, mediatization attempts to ‘capture somehow the broad consequences for everyday life and practical organization … of media, and more particularly of the pervasive spread of media contents and platforms through all types of context and practice’.27 As Couldry and Hepp reflect, ‘the social world is … changed in its dynamics and structure by the role that media continuously (indeed recursively) play in its construction’.28 This role for the media is also felt, but under-analysed, in terms of international law. A resistance to understanding international law in terms of its politics contributes to this blindness, but so too does the traditionally domestic conception of media and its reach. Both limiting factors must now be reassessed given the connective reach of media and the transnational consequences of our failure to adequately regulate it. The material infrastructure of the internet and of dominant platforms within it, can be understood as having its own regulatory function and effects, but these challenge traditional understandings of international law as a formal rules-based order. A significant danger of mediatization lies in the power held by those actors who control and maintain a monopoly over the material infrastructure of digital media. This will be a key theme in chapters four and six, drawing together consideration of monopoly power and the distortion and inequality which may result from mediatization.29 A further danger of mediatization is that of spectacle or trial by media. In chapters five and six I examine the dangers of communicative capitalism in the form of publicity and the privatisation of the communicative

25 Amelia Arsenault and Manuel Castells, ‘Switching Power: Rupert Murdoch and the Global B ­ usiness of Media Politics, A Sociological Analysis’ (2008) 23 International Sociology 488, 488. See an example of this form of media power, albeit involving an Anglo-American-centred view of ‘the world’ and a global media empire itself challenged by technological change: Jonathan Mahler and Jim Rutenberg, ‘How Rupert Murdoch’s Empire of Influence Remade the World’ The New York Times (3 April 2019), available at www.nytimes.com/interactive/2019/04/03/magazine/rupert-murdoch-fox-news-trump.html. 26 Couldry (n 10). 27 Nick Couldry and Andreas Hepp, ‘Conceptualizing Mediatization: Contexts, Traditions, ­Arguments’ (2013) 23 Communication Theory 191, 191. 28 Nick Couldry and Andreas Hepp, The Mediated Construction of Reality (Cambridge, Polity Press, 2017) 15, see further ch 2. 29 This is also an important theme in Couldry and Hepp’s analysis: Couldry and Hepp (ibid) ch 10.

Media and Mediatization  9 infrastructure upon which international law increasingly relies. In chapter one and throughout I highlight the significance, by contrast, of informed global publics which signal alternative forms of transnational collectivity, connection and co-ordination. This requires us to understand and engage further with global digital media forms and to reconsider how best to regulate and order them. In chapters two, three and four, I map out the contours of international media law, pointing to its absence in key areas, and also the ways in which it is challenged by the globalisation of digital media. To understand the media, international lawyers need to take account of its digital evolution, and to begin to think of the internet as the dominant platform for the media. While the rise of bloggers and social media once appeared to represent the disruption of concentrated corporate models of media organisation and the growth of citizen media, this can now also be seen to have heralded new forms of digital media power and monopoly. The growth of social media has fed broader critiques of the mainstream media and the rise of alternative news sites trading in ‘fake news’ and propaganda at the expense of watchdog journalism. This has been exploited for political advantage, most notably by President Trump, with his Twitter feed and support in the ‘Alt Right’ media, aiming to work around the traditional accountability role of the media, damage the media’s standing, weaken its legal protections, and utilise celebrity culture and political marketing to achieve ideological objectives. Alternative media thus can also take authoritarian forms, which are no less reliant on digital media platforms, but which offer a critique and rejection of the narrative of globalisation with which the internet and digital media have otherwise been so commonly associated. This represents a threat and challenge to the collective ideals associated with international law and its institutions, and points further to issues of transnational corporate power and responsibility. For while the publicity functions of digital media are sold as freedom-enhancing and transformational, they have also helped to usher in further commodification. While promising transparency, the rise of digital media platforms also delivered monopoly and profit to a select few media companies. It is clear then that the rise of digital media and its impact upon traditional understandings of the social and political significance of the media demands our critical attention. These changes need to be accounted for at the level of regulation and policy, but also in developing a critical theoretical understanding of the mediatization of international law. Media power is highly significant, but difficult to grasp and prove. Consequently it is left out of many accounts of power and seldom addressed within international legal scholarship.30 Greater awareness of the complexity of media practices orients us to consider media power from a broader and less empirically focused perspective, but with attention to the ways in which media frames our



30 Couldry

(n 10) 85–86.

10  Introduction world and shapes reality, our comprehension of it and responses to it.31 Focusing in this way upon the increasing significance of global digital media, and drawing insights from media scholarship, necessitates a rethinking of the nature and role of international law in such contexts.

II.  The Imbrication of Media and International Law Media and international law’s interdependence can result in conflict, but is also to a degree co-constitutive. Their imbrication in a variety of areas, to be examined in the chapters which follow, reveals the increasing importance of a transnational approach to media and media regulation. This in turn points to the inadequacy of existing frameworks, including those at the international level which emphasise free publics in the form of free speech and free markets, while struggling to protect endangered publics in contexts such as hate speech and propaganda, and also failing to effectively regulate and foster digital publics. An outdated liberal internationalist model of governance and ordering, twinned with a state-centric preference for domestic media laws, underpins this approach. This has allowed the internet and other significant forms of global information infrastructure to be developed in the absence of effective transnational public governance, and in the interests of powerful states and global digital media corporations. Indeed, these monopolists have often rejected their characterisation and their responsibilities as media publishers. Domestic laws are hampered by the limits of jurisdiction and international economic laws, without a significant focus on competition in terms of the media, do not sufficiently address the rise of digital media platforms. This absence positions powerful domestic actors such as the US and China, and regional jurisdictions such as the European Union, but also the dominant platforms such as Google and Facebook as key, and at times conflictual, players in shaping global information flows and communication. International law’s approach to media, which ought to contribute to the fostering of informed publics, is revealed as inadequate, and especially in light of the significance and rapid evolution of global digital media. Whilst increasingly an object for international regulation, the media is also a participant in international legal processes, from the gathering and dissemination of evidence, to the framing of global problems and the constitution of informed publics. If international law is (among other things) a mechanism of visibility and invisibility, then questions arise about the responsibility for inclusion and exclusion and, more generally, about the ethical dimensions of a mediatized international law. International law needs the media to make itself known and to reach its many constituencies – it requires open justice. International institutions need to create narratives about the work they perform. Many international lawyers and

31 ibid

65.

Structure  11 NGO workers also see media narratives as integral to their broader strategic advocacy. It is no longer enough to do the work, one must also be seen to be doing the work and to be actively shaping public perceptions about the work and its significance. As Couldry notes, ‘Spectacle’s role in politics is an old story, but its salience increases as media performance becomes increasingly the exclusive sphere where political authority is acquired and sustained’.32 I understand international law as a set of rules, but also as a social practice and a way of thinking about and ordering the world. International rules though often contentious, remain an important dimension of any global governance for media, but can be supplemented by softer, dynamic forms of law-making and compliance.33 An ongoing challenge here is to appreciate the potential and limits of these softer mechanisms, but also the continuing contribution of more traditional frameworks such as treaties. In the chapters which follow I focus on human rights law, but also consider other media-related regulatory frameworks including international criminal law, international humanitarian law, international economic law, international telecommunications law and developing areas of governance regarding the internet, platforms and data. I offer analysis of international media law frameworks, the international organisations and actors involved, their historical evolution and selected contemporary debates. I will not examine international intellectual property in any depth as it is a highly specialised area. Overall the intention is to analyse the legal frameworks in context and with some illustrative cases. The diversity of applicable frameworks illustrates both the potential of international law here, but also the difficulty of regulating media and the continuing reality of international law’s many limitations.

III. Structure In chapter one I argue that the normative goal of informed publics for international law is under sustained pressure, but remains critical to any future conception and realisation of a multilateral system of global governance. Despite the challenges involved, global publics remain necessary to address global problems. I consider historical debates over public opinion and the international flow of information, alongside contemporary debates regarding misinformation. As with earlier Cold War debates over the right to communicate, at stake is the emergence of a more diverse, inclusive and dynamic conception of international society. In chapter two I examine the place of international media regulation within broader efforts to protect and foster free and autonomous publics as part of the creation of a liberal international economic and political order. I begin with human rights and examine the most familiar form of media regulation, that concerning 32 ibid 147. 33 Joost Pauwelyn, Ramses A Wessel and Jan Wouters, ‘When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking’ (2014) 25 European Journal of International Law 733.

12  Introduction censorship and the protection of freedom of expression. I consider the dominance of expression-based regulation alongside the post-war development of an international economic order that sought to foster ‘free’ markets for media, but which ultimately failed to offer meaningful international regulation of media, as in the absent regulation of monopoly. In chapter three I move to consider crime and conflict, through the lens of incitement, international criminal law and the laws of war. Again, the discussion is illustrative rather than exhaustive; it brings into view a darker side of media activity, which has spawned a separate and at times punitive regulatory regime. The discussion here centres on human rights law, humanitarian law (both in protective and disciplinary modes), and also the international criminalisation of the media in the context of war crimes and genocide. In addressing the contemporary significance of misinformation, I also examine the issue of computational propaganda and emerging forms of manipulation of information. In chapter four I analyse the international legal frameworks regulating emerging digital media and its infrastructure. To do so I begin with perhaps the oldest international framework for media regulation, that concerning telecommunications and consider its significance for the internet. Here I discuss the role of international organisations, such as the ITU, along with ongoing debates over internet regulation and the role to be played by international law. Internet governance again points to the resilience of human rights law and limitations of trade law, but also to new categories such as data protection and platform governance. The chapter highlights the importance of transnational, regional and domestic approaches to regulation, against the backdrop of an increasingly challenging environment for multilateral international regulation. These chapters collectively build a picture of the significance of media power and narratives for the international system and consequent efforts made to develop an international law of the media, which have intensified and yet faltered in the context of the internet and a transforming digital media landscape. Despite the normative and practical import of informed publics in the future resolution of global problems, an examination of these illustrative international media law frameworks and institutional contexts reveals that they rely upon and perpetuate overlapping and at times conflictual visions of global publics that remain the subject of significant critique and contestation. This theme is further explored in chapters five and six. In chapter five, I examine the process of publicity, which as an effect of broader mediatization, increasingly shapes international courts and actors. At issue again is the concept of global publics, but also systemic legitimacy in terms of open justice. International law presupposes a role for the media in connecting its work with citizens at large, informing them and engaging their support and validation. I look at the International Court of Justice and the United Nations system, where publicity has been employed in response to criticisms of lack of transparency. I also consider further examples including the World Trade Organization (WTO) and ITU. I then turn to consider international criminal law and human rights, which are perhaps

Structure  13 the most mediated of all fields. Mediatized trials have public relations benefits, but also present the now familiar dangers of media spectacle. Human rights witnessing promises connection but can also deliver commodification and simplification. Publicity can become an end in itself, losing sight of its underlying systemic value and contributing to the legitimacy problems it is meant to address. In chapter six, I move to consider the broader critique of the communicative capitalism underpinning the mediatization of international law. An earlier optimism regarding the technological revival of global publics in the context of the internet is contrasted with contemporary disillusionment with the digital media landscape and emerging challenges associated with big data. I explore the ways in which mediated techniques of publicity result in both visibility and invisibility, action and inaction, with significant effects for international law’s operation and its experience in everyday life. The critique of communicative capitalism here draws further attention to the absence of effective international regulation for media as suggested by earlier chapters. Increasing reliance on social networks and digital media platforms as global public infrastructure, and upon mediated techniques of publicity, masks and facilitates the broader privatisation of the public sphere. The book’s general argument is that international law depends on informed global publics to function and to address the complex global problems which we face. This draws into view the role media plays in relation to international law, but also the role of international law in regulating the media. It reveals the communicative character of international law. International law relies particularly upon normativity and symbolism to function. This contributes to its dependence upon media, and in turn shapes the international legal regulation of the media, especially through the lens of human rights standards. But we should not limit our conception of freedom of speech (or even media freedom) with dominant institutional justifications of power free from regulation. Despite the obvious centrality of freedom of expression in grounding a developing and coherent international media law, its place can be too dominant at the expense of other important norms or values, such as media pluralism and diversity, or indeed at the expense of other forms of social action in more of an associative register. Our goal should be informed publics, not neoliberal futurism with deregulatory trimmings. We should not assume that, when driven by market forces, the media will perform the public and socially significant role which its watchdog and democratic status suggests. There are many who doubt the existence of a universal international community, or at least critique it as ideological and exclusionary. By focusing upon the concept of informed publics I suggest a more inclusive and plural conception of global publics to take account of this critique. I also wish to make the normative point that without connective and engaged global publics, international law is unable to perform the ordering, regulatory and governance functions with which it is tasked. In turn, international media regulation has a role to play to protect and foster informed global publics.

1 Informed Publics International law is a political project to imagine, construct and order the world, but in whose image? A more nuanced representation of the conflictual and diverse nature of international society is needed, one which takes greater account of the local and the domestic, but does not turn away from the benefits and reality of integration and co-existence. Informed publics provide such an account and offer a more inclusive and messier picture of the social and connective tissue of international law. Foregrounding such a role for informed publics reveals the functionally necessary, though underexplored, interaction of media and international law. This relationship enables the communicative dimension of international law’s daily operation, helping to shape and represent its normativity, scale and image. But focusing upon media also generates anxieties and confirms longstanding theoretical concerns regarding the status and authority of publics in international law. One of the central dilemmas of international law concerns the extrapolation to the international level of institutions and practices designed to achieve popular participation at the domestic level. For example, is there a unitary global ‘public’? What does this mean in terms of participation in decision-making – and what role does the media play in this regard? These questions carry implications for the wider legitimacy, and integrity, of the international legal system and have been articulated in terms of democracy, transparency and accountability within international governance.1 As we shall examine in this chapter, publics have historically been considered in international legal scholarship through debates over public opinion. This has seen international lawyers attempt to reach and shape publics through the media-driven technique of publicity. Yet, as I will examine in later chapters, the rhetoric of transparency and publicity as a ‘fix’ for the legitimacy problems faced by international law carries its own dangers.2 1 See, for example, Thomas M Franck, ‘Legitimacy in the International System’ (1988) 82 American Journal of International Law 705; Thomas M Franck, ‘The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium’ (2006) 100 American Journal of International Law 88; Christopher A Thomas, ‘The Uses and Abuses of Legitimacy in International Law’ (2014) 34 Oxford Journal of Legal Studies 729. For a trenchant critique of legitimacy see Martti Koskenniemi, ‘Formalism, Fragmentation, Freedom: Kantian Themes in Today’s International Law’ (2007) 4 No Foundations: Journal of Extreme Legal Positivism 7, 14–16. 2 Fleur Johns, Non-Legality in International Law: Unruly Law (Cambridge, Cambridge University Press, 2013) 5.

Informed Publics  15 Indeed  the digital disruption of the media landscape (as part of a broader ­technological ­transformation) is contributing to difficulties in locating authority within a cohesive global public sphere.3 Furthermore, both media and international law are now diagnosed as being in various states of crisis and fragmentation. After 1989 a revived liberal internationalism dominated visions of an international order guaranteed by a seemingly triumphant United States. Thirty years on from this moment of hope and hubris, the prospects for continuing dominance of US liberal internationalism appear to be diminished.4 Similarly an optimistic view of the connective power of global media is shadowed by concerns regarding monopoly and manipulation. And yet global problems requiring co-ordination and regulation beyond the domestic context point to the need for a more participatory and diverse conception of international law and its constituent subjects. It is here that I argue informed publics play a vital role, also requiring greater attention to be paid to the adequacy of current approaches to global media regulation. That will be the subject of later chapters which survey and analyse some exemplary, though often inadequate, international legal frameworks for the media and the notions of the public which underly them. I will also examine the ways in which international institutions conceive of public engagement in the form of publicity, a process which is central to the mediatization of international law with both positive and negative consequences. In this opening chapter I begin by offering the conceptual tool of informed publics. Having done so I then examine a range of earlier debates regarding public opinion and international law. These historical debates point to ongoing difficulties in locating the public in international legal theory and to lingering concerns regarding international law’s relationship to the media. As we will discover in later chapters, they help to expose the way in which international law has regulated and also failed to regulate media. I consider, for example, debates over information ordering and media governance which took place during the Cold War. This historical perspective helps us to understand and contextualise the contemporary challenges faced by media and international law. I argue that these challenges reflect a failure to regulate the media in transnational contexts and also a failure of imagination with regards to our conception of international society.

I.  Informed Publics Despite the significance of domestic and regional dynamics within international law, there remain significant global problems that require the attention of global 3 Benedict Kingsbury and Megan Donaldson, ‘From Bilateralism to Publicness in International Law’ in Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Kahn, Andreas Paulus, Sabine von ­Schorlemer and Christoph Vedder (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford, Oxford Scholarship Online, 2011) 83. 4 G John Ikenberry, ‘The End of the Liberal International Order?’ (2018) 94 International Affairs 7.

16  Informed Publics publics and frameworks. Unfortunately, there is little contemporary agreement regarding the shape and structure of such publics or the role which publicity might play in their constitution. The effects of such epistemic and social instability are being felt in a shifting international legal environment. Anne Orford notes that before questions of law and government can be determined, issues of fact have to be addressed … [y]et in an increasingly globalized world, where many policy questions are shaped by competing knowledge communities and resulting factual uncertainty, it has become increasingly difficult to produce that kind of knowledge about matters of political controversy.5

Many now contest the existence of a monolithic global public, and assert that this overstretches political connections to a point where they become too thin to hold meaningful content.6 Claims in the name of the international community are often attempts to translate the particular into a language of self-serving universalism.7 David Kennedy warns of the dangers of disenfranchisement involved in the ‘transformation of the first world media audience, as that audience is imagined by the media, into “the international community”’.8 Immi Tallgren points to further problems with emphasising communicative theory on the international plane when she asks, ‘in a plurality of political conceptions, what values should be communicated?’9 Nick Couldry and Clemencia Rodriguez remind us also of the ongoing political stakes of digital communication platforms which embed ‘corporate logics’ within the forms that media (and international law) take.10 In spite of these important critical perspectives it is clear that the media’s information-imparting function connects it both with public opinion and the formation of informed publics.11 The media wields significant communicative power which has a political impact and ‘can shape public opinion more broadly’.12 Informed publics are in turn essential to international legal processes, participation and reform.13 Carlo Focarelli has argued here that: ‘The internet and new

5 Anne Orford, ‘In Praise of Description’ (2012) 25 Leiden Journal of International Law 609, 624. 6 Immi Tallgren writes that the existence and content of an international community ‘is incontestably among the most vivid debates in international law’: Immi Tallgren, ‘The Voice of the International: Who is Speaking?’ (2015) 13 Journal of International Criminal Justice 135, 146. 7 See further David Kennedy, ‘The International Human Rights Movement: Part of the Problem?’ (2002) 15 Harvard Human Rights 99; Tallgren, ‘The Voice of the International’ (ibid). 8 Kennedy, ‘The International Human Rights Movement’ (ibid) 117. 9 Immi Tallgren, ‘The Sensibility and Sense of International Criminal Law’ (2002) 13 European Journal of International Law 561, 581. 10 Nick Couldry and Clemencia Rodriguez, ‘Why the Media is a Key Dimension of Global Inequality’ The Conversation (8 February 2018), available at theconversation.com/ why-the-media-is-a-key-dimension-of-global-inequality-69084. 11 Achilles Skordas, ‘Mass Media, Influence on International Relations’ (2014) Max Planck Encyclopedia of Public International Law, para 3. 12 Jacob Rowbottom, Media Law (Oxford, Hart Publishing, 2018) 11, 12–16. Rowbottom views this influence in terms of ‘framing, priming and agenda-setting’: 12. 13 Alan Boyle and Christine Chinkin, The Making of International Law (Oxford, Oxford University Press, 2007) 20. Achilles Skordas argues that ‘Mass media do not possess international legal personality

Informed Publics  17 media technologies, in particular, are key to the growth of transnational civil ­society … the media encourage interconnection in international society and create new opportunities for the growth of international law’.14 And yet this important idea of the media’s informational role can underplay the ideological function of the media and mask significant contradictions underlying current patterns of regulation. Similarly, liberal internationalism presents a seemingly neutral self-image of an international community shaped and supported by a universal international legal system when it has in fact also been revealed as ideological and exclusionary. We need to ask what kind of publics are envisioned and delivered by the media, by international law, and through their interaction? Is a traditional public sphere conception of media influence too unitary in form, and consequently does it fail to both descriptively and normatively account for the diversity and dynamism of global publics? In his early work, The Structural Transformation of the Public Sphere, Jürgen Habermas charts the emergence of a bourgeois public sphere and the central role of media within this process.15 According to Blanning, the role of communication is linked in the Habermasian account to the notion of the public: ‘it is the effort of communication which creates the “public” and gives it qualities of cohesion and authority quite different from mere aggregates of individuals’.16 Habermas emphasises the role of the media in several key dimensions: as an aspect of democracy; as a means for promoting public deliberation and rational communication; as implicated in the rise of public opinion and publicity; and as an arena for the emergence of commercial monopolies. He provides an optimistic account of the historical role of the media, though one which is at the same time pessimistic about the potential for market monopolisation of the culture industries. He sees the dangers for a commercialised media to become manipulative, emotive and sensationalist in its treatment of public debates. Benedict Anderson also famously argued that the rise of the media was implicated in the rise of the nation state, the building block of traditional international law.17 Similarly, Habermas places the press and the world of letters at the heart of this process of transformation.18 At the same time, he subjects the politics of and they are not primary actors or subjects of international legal relations; nonetheless, the media of global reach are influential participants, and factors to reckon with, in international relations.’: Skordas, ‘Mass Media’ (2014) para 6. 14 Carlo Focarelli, International Law as Social Construct: The Struggle for Global Justice (Oxford, Oxford University Press, 2012) 132. Achilles Skordas concludes that the ‘mass media system generates societal power, and by popularizing international law issues, challenges the paradigm of State mono­ poly over the interpretation and understanding of international law.’: Skordas (n 11) para 62. 15 Jürgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (Thomas Burger and Frederick Lawrence trs, Cambridge, MIT Press, 1991). 16 TCW Blanning, The Culture of Power and the Power of Culture: Old Regime Europe 1660–1789 (Oxford, Oxford University Press, 2002) 9. 17 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London, Verso Books, 1991) 46, and see generally chs 2, 3 and 4 for the role of the print media, books and the newspaper in the formation of imagined communities. 18 Habermas, The Structural Transformation of the Public Sphere (1991) 30–31.

18  Informed Publics spectacle and the marketing of politics to sustained critique.19 Ultimately, he is sanguine about the potential for a rational public manifested through organisations and the media. The key to ‘critical publicity’ for him is a plurality of media. For Habermas, ‘this critical form of publicity is in conflict with publicity merely staged for manipulative ends’.20 The Structural Transformation of the Public Sphere is not a contemporary account, but its concept of the public sphere remains foundational to contemporary understanding of the public and its examination of publicity continues to be relevant.21 Nevertheless, it is rightly critiqued as failing to take adequate account of difference, structural inequalities and the ways in which the public sphere maintains rather than challenges hierarchies of communicative power.22 The concept of informed publics, by contrast, offers a model of international civil society which allows for greater variety of forms of association. This anticipates the translation of the traditional notion of a public sphere to emerging global digital media environments.23 Here the monolithic notion of the international community is challenged by the more plural and active character of informed publics.24 This also contests the state-centrism of international law and better reflects a system which involves not a single participatory democracy but a range of regional, domestic and local polities. It takes account of ‘the various ways in which citizens engage politically beyond the confinements of the representative system’.25 The idea of informed publics reinforces the need for co-existence and transnational co-ordination and communication, but updates and extends the traditional public sphere. Mediatization is shaping and enabling new forms of association and

19 ibid 227. 20 ibid 232. 21 Michael Warner acknowledges and affirms the critique of Habermas (at 167), but notes that ‘the public sphere environment Habermas describes can be seen as the context of modern social movements … Social movements take shape in civil society, often with an agenda of demands vis-à-vis the state. They seek to change policy by appealing to public opinion.’: Michael Warner, Publics and Counterpublics (New York, Zone Books, 2005) 50. 22 Karin Gwinn Wilkins, ‘Advocacy Communication for and about Women’ in Tina Askanius and Liv Stubbe Østergaard (eds), Reclaiming the Public Sphere: Communication, Power and Social Change (Houndmills, Palgrave Macmillan, 2014) 51; Oscar Hemer and Thomas Tufte, ‘Afterword’ in Askanius and Østergaard (eds), Reclaiming the Public Sphere (ibid) 221. For critical discussion of Habermas’s work on the public sphere, see further Craig Calhoun (ed), Habermas and the Public Sphere (Cambridge, The MIT Press, 1992). 23 Tina Askanius and Liv Stubbe Østergaard, ‘Introduction’ in Askanius and Østergaard (eds), Reclaiming the Public Sphere (ibid) 2. See here, for example, the concept of networked publics which danah boyd suggests are ‘publics that are restructured by networked technologies’: danah boyd, ‘Social Network Sites as Networked Publics: Affordances, Dynamics, and Implications’ in Zizi Papacharissi (ed), A Networked Self: Identity, Community, and Culture on Social Network Sites (Abingdon, Routledge, 2010) 39. 24 Hemer and Tufte, ‘Afterword’ (n 22) 222. But Michael Warner considers that ‘there is no necessary conflict between the public sphere and the idea of multiple publics’: Warner, Publics and Counterpublics (2005) 56. 25 Askanius and Østergaard, ‘Introduction’ (n 23) 3.

Informed Publics  19 participation. Nick Couldry and Andreas Hepp point to various forms of collectivity made possible in conditions of deep mediatization and datafication.26 They argue that ‘we are experiencing a shift in how collectivities are imagined for political ends’, so that ‘With deep mediatization, and its more diversely configured media infrastructures, political projects for imagining collectivities become themselves more diverse, even contradictory’.27 Here the diversity promised by informed publics reflects a strengthening post-colonial critique of Eurocentric traditions of international law and the re-evaluation of earlier, contrasting forms of internationalism.28 This view of informed publics builds upon the theoretical scholarship of Michael Warner examining publics and counterpublics. Warner argues that a public is ‘a social imaginary’ and that ‘when people address publics, they engage in struggles … over the conditions that bring them together as a public’.29 Counterpublics are ‘defined by their tension with a larger public’ and ‘can have a critical relation to power’.30 My conception of informed publics in this sense challenges the structures and hierarchies of power which currently shape the possibilities for global public interdependence and action.31 This draws attention to ongoing failures to listen or to guarantee participation in global governance and in doing so reveals longstanding information asymmetries. Informed publics represent an important avenue to counter the tendency of the powerful to name and contain the public and to ‘frame their address as the universal discussion of the people’.32 Informed publics thus contest elite assumptions regarding their passivity and malleability. International law is, after all, an imaginative project of ‘world making’ which ‘unfolds in … mediated publics’.33 The analytical frame of informed publics illuminates and enhances that project, but necessarily operates in productive tension with it, a tension that can be traced also through earlier debates regarding public opinion and international law.

26 The ways in which data is coming to shape new forms of association in global governance is explored in Fleur Johns, ‘Data Territories: Changing Architectures of Association in International Law’ (2017) 47 Netherlands Yearbook of International Law 107; Fleur Johns, ‘Data, Detection, and the ­Redistribution of the Sensible in International Law’ (2017) 111 American Journal of International Law 57. See also Laura Reed and danah boyd, ‘Who Controls the Public Sphere in an Era of Algorithms?: Questions and Assumptions’ (Data & Society Research Institute, 2016), available at datasociety.net/ pubs/ap/QuestionsAssumptions_background-primer_2016.pdf. 27 Nick Couldry and Andreas Hepp, The Mediated Construction of Reality (Cambridge, Polity Press, 2017) 182. 28 See further Daniel Joyce, ‘International Law’s Cabinet of Curiosities’ in Jessie Hohmann and Daniel Joyce (eds), International Law’s Objects (Oxford, Oxford University Press, 2018) 22–25, 29. 29 Warner (n 21) 12. 30 ibid 56. 31 Michael Warner reflects that ‘A public … unites strangers through participation’ and that publics are ‘scenes of self-activity, of historical rather than timeless belonging, and of active participation rather than ascriptive belonging’: ibid 75 and 89. 32 ibid 117. 33 ibid 61.

20  Informed Publics

II.  Public Opinion and International Law The term ‘public opinion’ evolved with the rise of representative democracy, the spread of liberal ideas and the consolidation of capitalism.34 It belongs with the new public spaces that came into being with the emergence of the press and the  market.35 Public opinion has come to be seen as a check on governmental power, a popular supplement to the formalised processes of accountability in liberal democracy. As Robert W McChesney reflects: ‘The political nature of the problem of the media in democratic societies is well-known; virtually all theories of self-government are premised on having an informed citizenry, and the creation of such an informed citizenry is the media’s province’.36 But debates over the role of media in shaping public opinion in both domestic and international contexts highlight important concerns regarding public opinion. It is difficult to ascertain, it can be unrepresentative, it can be manipulated by the powerful, it can be affected by media bias and selectivity, it can be counterproductive in its shaming dimension, it can be difficult to establish across borders and cultures, and can exacerbate populism and nationalism at the expense of internationalism.37 Such fears have antecedents in a range of formative international legal debates regarding public opinion, participation and the development of international legal frameworks and institutions. Martti Koskenniemi argues that initially the force of treaties ‘arose from public opinion’, but that such opinion in the absence of ‘international legislation’ was ‘ephemeral’ and ‘crystallized in a legal scholarship that proceeded by way of introspection’.38 Previously secretive processes of diplomacy began to be challenged by public settlements with, for example, the Peace of Paris of 1856 occurring ‘in an unprecedented light of publicity’.39 Contrasting visions of international law emerged in the nineteenth century with some seeing the need for it to be grounded in a view of international community, while others rejecting this and holding to its role of co-ordination among states.40 Conflicts such as the Franco-Prussian War in 1870–71 dented hopes for unending European progress towards peace, growth and the spread of liberal democracy in the form of moral internationalism.41 This was accompanied by the realisation that popular opinion 34 CA Bayly argues that ‘the emergence of articulated representations of something which politicians saw as “public” or “national” opinion was undoubtedly a feature of the nineteenth century’: CA Bayly, The Birth of the Modern World: 1780–1914 (Oxford, Blackwell Publishing, 2004) 484. 35 Blanning, The Culture of Power and the Power of Culture (2002) 2. 36 Robert W McChesney, The Problem of the Media: U.S. Communication Politics in the 21st Century (New York, Monthly Review Press, 2004) 17. 37 Sienho Yee, ‘Public Opinion’ (2014) Max Planck Encyclopedia of Public International Law, paras 25–31. 38 Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge, Cambridge University Press, 2001) 15–16. 39 ibid 28. 40 ibid 32–34. 41 ibid 35–36.

Public Opinion and International Law  21 and the technological and political changes accompanying modernity would not always result in peace and progress, or a Kantian cosmopolitan world.42 Nevertheless there was a changing idea of international society and consciousness, with Koskenniemi arguing that ‘the founding conception of late nineteenth-century international law was not sovereignty but a collective (European) conscience’.43 The Martens clause, with its humanist reference to ‘the dictates of the public conscience’, has remained an important reminder of both the role of publics during the development of international law in the nineteenth century, but also of the role for public opinion in international law-making.44 By the late nineteenth century public opinion was seen as having an increasing role in international affairs, and the press was regarded as significant in this respect. Harold Nicolson explained this in terms of a perception of the need for democratic control over foreign policy. As Nicolson writes, ‘The use of the printing press as an ally to diplomacy is as old as Swift and the Treaty of Utrecht’.45 The press at this time was evolving and growing, as were its audiences, both consolidating and challenging societal hierarchies and in so doing exposing differences in relation to class, gender, race and national identity.46 This embrace of the media also revealed the untapped potential for what would later come to be seen as propaganda.47 Nicolson refers to the manipulation of media by Bismarck and others, but dates the decisive rise of propaganda as co-occurrent with the First World War and ‘the invention of the wireless’.48 Such changes, in both political arrangements and technology, led public opinion to become a topic for discussion at the turn of the twentieth century in international law circles. The very first issue of the American Journal of International Law in 1907 began with a discussion of public opinion. Elihu Root’s opening editorial was entitled ‘The Need of Popular Understanding of International Law’, and envisaged a role for the newly founded American Society of International Law (ASIL) in this regard. Root wrote of the need to ‘increase the general public knowledge’ of international law, arguing: The more clearly the people of a country understand their own international rights the less likely they are to take extreme and extravagant views of their rights and the less likely they are to be ready to fight for something to which they are not really entitled.49 42 ibid 36–37. 43 ibid 51. 44 Tetsuya Toyoda, ‘Influence of Public Opinion on International Law in the Nineteenth Century’ (2009) 46 Alberta Law Review 1099; Yee, ‘Public Opinion’ (2014); Antonio Cassese, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’ (2000) 11 European Journal of International Law 187. 45 Harold Nicolson, Diplomacy, 3rd edn (Oxford, Oxford University Press, 1963) 167. 46 ‘By 1914 … 100 times as many newspapers were printed as had been printed in 1780, in a huge variety of languages’: Bayly, Modern World (2004) 483. CA Bayly writes of the nineteenth century as ‘the age of global communication’ reflecting the significance of the ‘electric telegraph’ which along with the ‘railway, the steamship, and, later, the telephone, revolutionized the speed of communication’: 19–20. 47 Nicolson, Diplomacy (1963) 168. 48 ibid 168–71. 49 Elihu Root, ‘The Need of Popular Understanding of International Law’ (1907) 1 The American Journal of International Law 1, 2.

22  Informed Publics Carl Landauer notes that Root’s call for education of the public ‘derives from his longstanding distrust of popular emotion’.50 His fear of (ill-informed) public opinion was shared by elites at the time and Root argued that with greater understanding of international law would come better ‘popular control over national conduct’.51 In this period before the First World War, Root’s interest in public opinion was shared by other commentators. A Pearce Higgins wrote in 1910 of the possibility of an international public opinion, but felt that it ‘needs educating’.52 He pointed to the role of professional international law associations like the International Law Association (ILA) and ASIL in this educational activity, embracing, like Root, the idea that international lawyers themselves should take part in bringing international law into the arena of informed public opinion.53 Such attitudes to public opinion were also held by press barons of the era who rather paternalistically ‘saw newspapers as vehicles for education, drawing working people to an understanding of their duty as citizens’.54 But whilst a growth in the media consolidated feelings of national belonging and even at times a sense of internationalism, we should be wary of too steady a liberal narrative linking the media to a progressive or more peaceful era.55 As CA Bayly warns, these developments in communications ‘strengthened national governments as well as national civil society’, and reflected both increasing freedoms and forms of control.56 The communications revolution enabled by the telegraph amplified ‘the sense of change and conflict’, allowing for co-ordination of action on a global scale.57 Indeed, the two world wars were to change attitudes both to public opinion and the media.58 In doing so they also did much to change the practice and prospects of international law. In 1923 Philip Marshall Brown, a Professor of International Law at Princeton who had earlier been a diplomat and was a foundation member of ASIL, wrote of the ‘disillusionment’ felt by many in the aftermath of

50 Carl Landauer, ‘The Ambivalences of Power: Launching the American Journal of International Law in an Era of Empire and Globalization’ (2007) 20 Leiden Journal of International Law 325, 333. 51 Root, ‘Popular Understanding’ (1907) 1. See Landauer, ‘Ambivalences of Power’ (ibid) 329. 52 A Pearce Higgins, The Binding Force of International Law (Cambridge, Cambridge University Press, 1910) 38. 53 ibid 38–40. 54 Bayly (n 34) 211. 55 See further James Curran, who critiques a ‘Whig view of the press as the voice of an indeterminate “public”’, (at 125) offering instead a useful overview of competing media histories of the period which challenge and supplement the dominant liberal media account of the relationship of media development with democratic political developments in the British context: James Curran, Media and Democracy (Abingdon, Routledge, 2011) chs 8 and 9. 56 Bayly writes, ‘Governments became the protectors of telegraph lines. News syndicates such as Reuters controlled and channeled news. These controls tended to ensure that government and national political elites read little that they did not want to hear’: Bayly (n 34) 211. 57 ibid 461. Bayly notes that ‘Between 1900 and 1909 the volume of press traffic on the telegraphs trebled’. 58 See further Philip Knightly, The First Casualty: The War Correspondent as Hero and Myth-Maker from the Crimea to Iraq (Baltimore, The Johns Hopkins University Press, 2004).

Public Opinion and International Law  23 the First World War.59 He was particularly concerned about the role of the press in manipulating public opinion, and concluded that public opinion was a ‘whimsical, tyrannical force that may be used for evil as well as good purposes’, especially in situations of conflict.60 This concern with populism and manipulation of publics shares much with contemporary debates as discussed below.61 The inter-war period was an existentially challenging time for international law, but also one of development and organisation, often typified in historical shorthand by the rise and failure of the League of Nations and the development of multilateral institutional settings including the establishment of the Permanent Court in 1922.62 These were important developments pre-figuring the United Nations and international institutional framework of the present day. As Manley Hudson wrote of the spirit of the time: ‘The progress of the World War from 1914 to 1918 had served to convince people in many countries that international organization was essential to maintaining peace in the future’.63 But of course much disagreement remained as to how best to achieve a lasting peace and whether this could be achieved through multilateral co-operation and the development of international organisations. Woodrow Wilson’s Fourteen Points represented an attempt to renew earlier forms of liberal internationalism, but was also motivated by US national interests.64 For its proponents this vision of international order marked an orientation towards open and public diplomacy, questions of peace, colonial reform, international organisation and treaty-making. This soon came to be seen by critics as wishful thinking, self-serving and naïve. Chief among these critics was EH Carr, who wrote on the eve of World War Two that in the international legal theory of the time, ‘utopia tends to predominate over morality to an extent unparalleled in other branches of jurisprudence’.65 Carr foreshadowed the contemporary critique of ‘the international community’ in writing that: Theories of social morality are always the product of a dominant group which identifies itself with the community as a whole, and which possesses facilities denied to subordinate groups or individuals for imposing its view of life on the community.66 59 Philip Marshall Brown, International Society: Its Nature and Interests (New York, The ­MacMillan Company, 1923) vii–viii. See also Chandler P Anderson, ‘The Power of Public Opinion for Peace’ (1922) 16 The American Journal of International Law 241. 60 Brown (ibid) 164. 61 For a helpful analysis of the role of the media in the broader politics of justifying force see Charlotte Peevers, The Politics of Justifying Force: The Suez Crisis, the Iraq War and International Law (Oxford, Oxford University Press, 2014). See also Thomas M Franck, Recourse to Force: State Action Against Threats and Armed Attacks (Cambridge, Cambridge University Press, 2002) 67–68. 62 For a wide-ranging analysis of the League of Nations era, see David Kennedy, ‘The Move to Institutions’ (1987) 8 Cardozo Law Review 841. 63 Manley O Hudson, The Permanent Court of International Justice (New York, MacMillan, 1934) 85. 64 Woodrow Wilson, ‘Fourteen Points’, 8 January 1918 (The Avalon Project), available at avalon.law. yale.edu/20th_century/wilson14.asp. 65 Edward Hallett Carr, The Twenty Years’ Crisis 1919-1939: An Introduction to the Study of International Relations (London, MacMillan, 1939) 224. 66 ibid 101.

24  Informed Publics Although now thought of by many international lawyers rather crudely as an archetypal realist, and linked with Hans Morgenthau as a foundational figure in the discipline of international relations, Carr argued in fact that ‘any sound political thought must be based on elements of both utopia and reality’.67 In other words, he was not arguing for power over morality or in place of law. Rather, he was concerned that through the manipulation of opinion, a form of moral internationalism had come to shape international law. Carr did not dispute the existence of a world community, but argued that thick relations prevailed over thin: ‘Loyalty to a world community … [was] not yet powerful enough to create an international morality which will override vital national interests’.68 Carr was a powerful critic of the internationalism of the interwar years and attentive to the limits and overreach of international law.69 This perspective has not endeared him to later international legal scholars, but Carr did recognise a role for international society and for international law.70 Many others at the time, recognised such deficiencies, and looked to publics and public opinion as a means to further develop emergent frameworks for international ordering and thinking. For example, Henri Rolin, the Belgian international lawyer and socialist politician who was also a figure in the development of the United Nations in 1945, wrote in 1942 that ‘texts are barren and that even the most cleverly contrived machinery remains ineffective if it does not rest on sufficiently wide and deep, definite and strong human convictions, that is, on a settled and educated public opinion’.71 Later in the same decade Alejandro Alvarez, the Chilean international law professor and judge at the International Court of Justice (ICJ), located the glimmerings of what he took to be a new international law of ‘social interdependence’, and argued in his opinion in the foundational Corfu Channel case that ‘Politics and public opinion exercise a great influence on the exercise of the rights of States’.72 The continuing turn to institutions as actors within international law in the post-war period required further engagement with international public opinion, with changing forms of media and associated techniques of publicity. This was an era which we now associate particularly with the emergence of television. David Garland writes of the impact of television and media consolidation, ‘The emergence of a single nation-wide information system to which everyone has constant

67 ibid 118. 68 ibid 211. 69 ibid 284. 70 ibid 228. 71 Henri EAM Rolin, ‘Public Opinion and International Law’ (1942) 9 Social Research 169, 181. See also Hans Kelsen who observed in 1941 that ‘There can be little doubt that, on the whole, national public opinion, like international public opinion, disapproves of war and permits it only exceptionally as a means to realize a good and just cause’: Hans Kelsen, Law and Peace in International Relations (Cambridge, Harvard University Press, 1942) 37. 72 The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v Albania) (Merits) [1949] ICJ Rep 4, 42–43 (Judge Alvarez).

Public Opinion and International Law  25 access had major consequences for group identities and relations’.73 This built upon the earlier connective power of radio,74 but also marked a shift towards mass entertainment industries and notions of celebrity in a more consumer-driven society. Whilst the turn to publicity had not developed to the extent it has now, which I explore in further depth in chapter five, it was increasingly recognised as a necessary and important tool for international legal frameworks. It was, for example, connected to the emergence and enforcement of the international human rights system which came to rely on techniques such as naming and shaming in an attempt to address underlying problems with enforcement and achieving normative consensus. The influential international legal scholar and judge of the ICJ, Hersch Lauterpacht, who played a role both at Nuremberg and in the development of the Universal Declaration of Human Rights,75 wrote of the part which public opinion was to play in his imagined schema for the enforcement of an ‘international bill of rights’. Public opinion was not to be a substitute for treaties, a developing jurisprudence and institutions, but it could help shape them and contribute to their legitimacy and effectiveness.76 Engaging public opinion was from this perspective essential to bridging the divide between the domestic and the international, and in developing a broader rules-based system of international organisation.77 And yet, despite this recognition of publicity’s international legal role and of the media’s significance in its delivery, the experience of propaganda between and during the wars also raised the spectre of the ideological use of the media and especially of instant forms of media such as radio and television. From this perspective, mass media audiences were often configured as passive, unable to critically assess media messages and hence vulnerable to control.78 Such attention

73 David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago, The University of Chicago Press, 2001) 86. 74 Frank Trentmann writes of the social power of radio: ‘In their radio imagination, people forged new social solidarities and acted out social roles. Listening to the wireless expanded the emotional horizon of the private person, who learnt to share the joy and pain of distant others’: Frank Trentmann, Empire of Things: How We Became a World of Consumers, from the Fifteenth Century to the Twenty-First (London, Allen Lane, 2016) 269. 75 Ana Filipa Vrdoljak, ‘Human Rights and Genocide: The Work of Lauterpacht and Lemkin in Modern International Law’ (2009) 20 European Journal of International Law 1163. See also Philippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity (London, Weidenfeld & Nicolson, 2016). 76 Hersch Lauterpacht, International Law and Human Rights (London, Stevens & Sons Ltd, 1950) 293. 77 Quincy Wright, a US political scientist whose work focused on international law and relations and who like many others saw these disciplines as central to the resolution of international conflict, contended that for the UN system to operate effectively would involve ‘the development of a world public opinion which synthesizes the demand for national integrity with the need for effective international co-operation’: Quincy Wright, The Role of International Law in the Elimination of War (Manchester, Manchester University Press, 1961) 86. 78 Herbert Marcuse asks, ‘Can one really distinguish between the mass media as instruments of information and entertainment, and as agents of manipulation and indoctrination?’: Herbert Marcuse, One-Dimensional Man: Studies in the Ideology of Advanced Industrial Society (Abingdon, Routledge Classics, 2002).

26  Informed Publics to the manipulation of public opinion, along with the control and commodification of information flows, deepened during the Cold War period and provoked a wider debate over the need for international media regulation, involving contrasting visions of internationalism and order. These ideological disputes retain a salience for the present day.

III.  Cold War Debates Over Information and Media During the Cold War years there was an increasing reliance by powerful states upon various forms of public diplomacy, as East and West attempted to use the media for their own ideological objectives and as leverage in the battle to win hearts and minds. As Odd Arne Westad writes, ‘the Cold War was initially viewed as a security emergency, [but] by the 1950s it had become a battle of global alliances and of political ideas’.79 Equally, the development of communications and transportation in this period were central to the ‘global market revolution of the late twentieth century’.80 This was a battle over both ideology and infrastructure. There was also concern in many quarters about the dominance of commercial media and the potential for distortion and monopoly. In The Changing Structure of International Law published in 1962, the American-German Columbia law professor Wolfgang Friedmann, reflects on the rise of public opinion within international law and the influence this provided the media.81 Friedmann worried about the threat of ‘concentration of power, through modern industrial and technological developments’ and the potential for ‘rigid’ control of the media, whether by commercial enterprises or the state itself.82 These concerns and earlier debates within international legal scholarship regarding public opinion remain important precursors for any analysis of current issues such as ‘fake news’, algorithmic manipulation of media audiences, the dominance of platforms such as Google and Facebook and the rising influence of social media. Friedmann warned of the power of ‘a Press that is becoming rapidly more concentrated in the hands of a very small number of business tycoons’.83 Concerns about commodified mass media and its ideological potential connected with those who argued that international law needed to decolonise

79 Odd Arne Westad, ‘The Cold War and the International History of the Twentieth Century’ in Melvyn P Leffler and Odd Arne Westad (eds), The Cambridge History of the Cold War: Volume I, Origins (Cambridge, Cambridge University Press, 2011) 4. He writes of the competing universal ideas: ‘By 1945, these ideas – individual liberty, anticollectivism, and market values on the US side; social justice, collectivism, and state planning among the Soviets – had hardened into ideologies, in which universalist political ideals mixed freely with older and more specific cultural traits’: at 13. 80 Westad (ibid) 12. 81 Wolfgang Friedmann, The Changing Structure of International Law (London, Stevens & Sons, 1964) 7. 82 ibid 43. 83 ibid.

Cold War Debates Over Information and Media  27 further and must ensure a right to communicate for all citizens. In the mid-1970s the United Nations Educational, Scientific and Cultural Organization (UNESCO) launched an initiative which focused attention on the international dimensions of media power (including in its negative forms), as well as on the possibilities for international regulation of the media. This was linked to efforts to develop a new world information and communication order (NWICO), alongside the effort to construct the new international economic order (NIEO).84 One outcome of these debates was the elaboration of UNESCO’s Mass Media Declaration, which drew on earlier post-war declarations by the UN General Assembly concerning propaganda and incitement, international human rights standards, and provision within Article 1(2) of the UNESCO constitution ‘to promote the free flow of ideas by word and image’.85 The Declaration emphasised the mass media’s role in fostering peace and respect for human rights, and highlighted the need for steps to ensure greater availability and diversity of information.86 In highlighting the imbalance of power between the Global North and South, Article 6 called: ‘For the establishment of a new equilibrium and greater reciprocity in the flow of information, which will be conducive to the institution of a just and lasting peace and to the economic and political independence of the developing countries’.87 Controversially the Declaration also made connections between inequalities in the flow of information and issues of racism and colonialism, issues which were especially sensitive for the economic beneficiaries of the international legal order.88 The concept of ‘the right to communicate’ was first put forward in 1969 by Jean d’Arcy who worked for the UN Office of Public Information.89 He was responding to changes in communications technologies such as satellite communication, and argued that a ‘new’ human right to communicate was needed in addition to Article 19 of the Universal Declaration of Human Rights (UDHR) guaranteeing free expression. This idea was subsequently taken up by UNESCO in the 1970s and 1980s.90 The right to communicate was linked with efforts within UNESCO 84 Regarding the NIEO see further the UN General Assembly, Charter of Economic Rights and Duties of States, UN GA Res 3281 (XXIX) (12 December 1974). On the NWICO see further Inger Österdahl, Freedom of Information in Question: Freedom of Information in International Law and the Calls for a New World Information and Communication Order (NWICO) (Uppsala, Iustus Förlag, 1992). 85 United Nations Educational, Scientific and Cultural Organization, Declaration on Fundamental Principles Concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War, UNESCO General Conference, 20th sess (28 November 1978). 86 ibid Art 1. 87 ibid Art 6. 88 ibid Arts 2(3) and 3(2). 89 See further, Daithí Mac Síthigh, ‘From Freedom of Speech to the Right to Communicate’ in Monroe E Price, Stefaan Verhulst and Libby Morgan (eds), Routledge Handbook of Media Law (Abingdon, Routledge, 2013) 177–80. 90 UNESCO, Resolution 4.121: Right to Communicate, UNESCO General Conference, 18th sess, UN Doc 19 C/93 (1974); UNESCO, Resolution 3.2: Right to Communicate, UNESCO General ­Conference, UN Doc 22 C/5 (1983); MacBride Commission, ‘Many Voices, One World: Communication and ­Society. Today and Tomorrow’ (Paris, UNESCO, 1980).

28  Informed Publics to develop a NWICO to address issues with asymmetry of information flows and communicative inequality. This controversial project contributed to the withdrawal of the United States and the United Kingdom from the organisation in the 1980s. UNESCO dropped the issue from its agenda, though it remains an important critical lens through which to assess the limitations of freedom of expression, including today in the context of internet freedom. The right to communicate was a victim, in part, of Cold War politics and fears that the NWICO would lead to further state controls over media and information and restrict free expression. The US viewed such efforts as being detrimental to their national interests, with a largely unregulated and globalising US media representing a vehicle for both political and economic advantage. Nevertheless, even within mainstream US international legal scholarship concerns remained regarding private media power and the potential for monopoly and manipulation. For example, McDougal, Lasswell and Chen’s book, Human Rights and World Public Order, written in 1980 from the perspective of the influential New Haven school, pointed to the significance of public opinion, but also to its susceptibility to control by the wealthy and powerful.91 This New Haven school interest in the media and its role in policy and community formation continues.92 Indeed enduring tensions associated with monopoly and concentration of influence, as articulated in Cold War international legal policy and scholarship, retain their relevance today in a variety of ways. Concerns regarding the manipulation of opinion now focus upon the threat of computational propaganda and disinformation as will be examined in chapter three. Recognition of the importance of information flows, a right to communicate and a fairer distribution of and access to communications infrastructures underscore debates over the governance of digital publics as I will explore in chapter four.

IV.  Contemporary Challenges The media is in transition. Some key aspects of the shifting media landscape include: convergence and the rise of digital and social media; deprofessionalisation

91 They wrote: ‘In many communities in which the media of mass communication are more or less monopolized by power elites, the gathering, processing, and dissemination of information are made a deliberate and vital instrument of thought conditioning and coerced conformity … In parallel, in some communities in which the media of mass communication are concentrated in the hands of wealth elites, the gathering, processing, and dissemination of information tend to be dominated by profit considerations and colored by inordinate commercialism, thereby debasing the quality of enlightenment.’: Myres S McDougal, Harold D Lasswell and Lung-chu Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (New Haven, Yale University Press, 1980) 136. 92 See, for example, the significant analysis of media as participants in international law offered by Monica Hakimi: Monica Hakimi, ‘The Media as Participants in the International Legal Process’ (2006) 16 Duke Journal of Comparative and International Law 1.

Contemporary Challenges  29 and citizen-generated content; the fall in advertising and subscription revenue for traditional media outlets; erosion of funding for public service broadcasting and arguments for privatisation; the growing significance of data, search and algorithms; and ‘fake news’ and disinformation. Fears concerning propaganda and the media’s role in the manipulation of elections are familiar.93 The Cambridge Analytica scandal has drawn attention to new forms of manipulation and computational propaganda made possible by platforms such as Facebook and the data-driven targeting of voters – most notoriously in the US elections but also in other contexts including the Brexit referendum in the United Kingdom.94 Earlier enthusiasm for digital media as a vehicle for social change, such as in the social movements associated with the Arab Spring beginning in 2010 or the online co-ordination of the Occupy movement beginning in 2011, is now tempered by the use of social media to interfere with democratic elections, facilitate online misogyny, and to incite, perpetrate and celebrate acts of violence. There is also recognition that while social media has allowed global audiences the opportunity to witness first-hand mediated conflicts such as in Syria, it has done little to contribute to their resolution or to transform political responses, especially on the international plane. The internet is heralded as a guarantor for media diversity and the free flow of information and yet also recognised as a source of fragmentation, online harms and commodification. At a meta level, questions are now being asked about the costs involved with social media.95 Trust in traditional media is also eroding, in part due to technological disruption.96 The challenges posed by technological disruption are equally affecting the prospects of international law. Anne Orford argues that: The tension between freedom and security … has long structured the project of creating a global legal order. That tension is intensified by the mass surveillance of communications, state-sponsored hacking, the use of personal data mined from a commercialised

93 Robert Darnton, ‘The True History of Fake News’ The New York Review of Books (13 February 2017), available at www.nybooks.com/daily/2017/02/13/the-true-history-of-fake-news. 94 See further ‘The Cambridge Analytica Files’ The Guardian, available at www.theguardian.com/ news/series/cambridge-analytica-files. 95 In 2017 The Economist reflected: ‘Facebook, Google and Twitter were supposed to save politics as good information drove out prejudice and falsehood. Something has gone very wrong’: ‘Do Social Media threaten Democracy?’ The Economist (4 November 2017), available at www.economist.com/ leaders/2017/11/04/do-social-media-threaten-democracy. See further, Nick Couldry, ‘Voiceblind: Beyond the Paradoxes of the Neoliberal State’ in Tina Askanius and Liv Stubbe Østergaard (eds), Reclaiming the Public Sphere: Communication, Power and Social Change (Houndmills, Palgrave Macmillan, 2014) 23–24. 96 Alan Rusbridger, ‘End Front-page Falsehoods and Regain the Public’s Trust’ The Guardian (29 September 2019), available at www.theguardian.com/commentisfree/2019/sep/28/end-front-pagefalsehoods-and-regain-publics-trust-press. See further Katherine Viner, ‘A Mission for Journalism in a Time of Crisis’ The Guardian (17 November 2017), available at www.theguardian.com/news/2017/ nov/16/a-mission-for-journalism-in-a-time-of-crisis; Katherine Viner, ‘How Technology Disrupted the Truth’ The Guardian (12 July 2016), available at www.theguardian.com/media/2016/jul/12/howtechnology-disrupted-the-truth.

30  Informed Publics and lightly regulated internet for profit and propaganda … As the world becomes ever more integrated, the struggle over what values should underpin that integration are becoming more intense.97

The normative struggle involved between competing conceptions of international order in light of such integration, along with the precarity resulting from the global financial crisis and now the impact of COVID-19, has triggered concerns about the return of authoritarian nationalism in the form of populism and a rejection of the networked transnational public envisioned by liberal internationalism. This fear of the public in the form of populism in some recent analysis reminds us of earlier debates regarding desires for and fears of popular control of international order. James Crawford writes of a contemporary political antagonism to international law, highlighting the critique of multilateralism which leads in some instances to withdrawal by states from central frameworks.98 Crawford concludes that whilst such challenges may not portend the demise of international law some areas ‘are at risk of erosion in the current political climate’.99 He further warns of the potential over time for a ‘larger-scale retreat into nativism and unilateralism’ and argues that in such a context ‘the communitarian values of international law’ will need defending.100 The problem with such analysis is that it tends to configure publics as a threat to communitarian values and the focus for critique.101 Other accounts of the contemporary challenge to a multilateral rules-based order, point to technology as both the problem and the solution. Drawing broadly on a global administrative law approach, but seeking to update its focus on accountability in the form of communication in light of the risks posed by technology and in the context of big data, Eyal Benvenisti seeks to expand global governance beyond its primary focus upon the accountability of international organisations in order to ‘protect human dignity and the very viability of the democratic state’.102 From this perspective trust in networks of governance and expertise cannot solely be re-established by means of transparency and information, for data-driven decision-making threatens the traditional communicative understanding of accountability. Benvenisti argues that ‘we are now facing an era where communication itself becomes increasingly part of the problem and is insufficient to ensure accountability’.103 The solution then to ensuring that algorithms do not

97 Anne Orford, ‘In the Hall of Mirrors’ LRB Blog (21 July 2018), available at blog.lrb.co.uk/blog/2018/ july/in-the-hall-of-mirrors. 98 James Crawford, ‘The Current Political Discourse Concerning International Law’ (2018) 81 Modern Law Review 1. 99 ibid 21. 100 ibid 22. 101 See further Christine Schwöbel-Patel, ‘Populism, International Law, and the End of Keep Calm and Carry on Lawyering’ (2019) 49 Netherlands Yearbook of International Law 2018 97. 102 Eyal Benvenisti, ‘Upholding Democracy Amid the Challenges of New Technology: What Role for the Law of Global Governance?’ (2018) 29 European Journal of International Law 9, 10. 103 ibid 15.

Contemporary Challenges  31 take over entirely from humans as decision-makers is to maintain ­algorithmic ­accountability and open access to data – to overcome what Benvenisti terms the ‘“big data divide”… between those who have access to large-scale data and the means to analyse this data and those who do not’.104 There are also problems posed for traditional conceptions of community and autonomy by the importance of big data for the sensory economy of international law.105 As the earlier discussion of public opinion’s place within the modern era of international law indicates, the technologies and events may be new, but there are continuities as well as disruptions involved in contemporary developments. A rhetorical turning away from liberal internationalism is significant, but needs to be understood also from a longer viewpoint. A more inclusive and participatory global order cannot be built around a single national model, and in this regard some aspects of the current ‘crisis’ of international law may mark an important acknowledgement of the international legal system’s limitations. I argue that any consequent reassessment ought not to abandon entirely the call to enhance and deepen forms of interconnection and participation on the international plane, nor the critical role to be played by media and international law in this regard. But we must also acknowledge the limitations of international law and dangers associated with mediatization as an ideological tool for the powerful. Such a problem is illustrated by the parochial and selective media interventions surrounding US missile strikes in Syria in 2017 acclaiming the use of force without legal justification. Indeed, Anne Orford warns that the Trump administration’s shift away from public accountability in the form of legal justification is significant, as is the liberal internationalist support such unilateral action generated. As Orford argues: ‘The international legal order is far from ideal. But it provides at least some means by which the justifications for the use of state violence can be opened to public debate and challenge’.106 Circumventing that process, flawed as it is, and disengaging with legal discourse leaves us with a dangerous mix of moralism, self-interest and media spectacle.107 This threatens an already fragmenting system of multilateral governance and underlying domestic political systems. Despite these contemporary developments the need for deeper forms of public participation in and engagement with international affairs has

104 ibid 70. Benvenisti writes, ‘With the rise of ICT-driven governance, grounded in the amassing and processing of big data by machines, the key to transparency and accountability of public and private governance instead lies in securing access to the same precious resource – big data – independently of the governance bodies; protecting the channels of communications against manipulation and pollution and insisting on the involvement of humans in computerized decision-making processes’: 56. 105 Johns, ‘Redistribution of the Sensible’ (2017) 102. 106 Anne Orford, ‘No Legal Justification’ LRB Blog (10 April 2017), available at blog.lrb.co.uk/ blog/2017/april/no-legal-justification. 107 ibid. See also Anne Orford, ‘Trump v. the Law’ LRB Blog (18 April 2018), available at blog.lrb. co.uk/blog/2018/april/trump-v.-the-law.

32  Informed Publics never been more urgent. Current challenges include addressing the existential threat of climate change, rising inequality and poverty, along with the myriad problems to be unleashed by the COVID-19 pandemic. International law, media and informed publics cannot ‘solve’ these crises, but each will have a significant role to play in addressing them.

V. Summary This chapter has offered the analytical lens of informed publics as a way in which to understand and examine the imbrication of media and international law. To do so I have explored and set out a range of debates that concern the place and significance of public opinion within international law and order. That historical context, from the nineteenth century to the end of the Cold War, shows that questions of public participation in global governance have a distinct and continuous lineage with implications for how we inform and are informed by media. Many of the contemporary challenges resulting from technological disruption of both media and international law reflect ongoing struggles for power on the international plane. Crisis and disruption provide both an opportunity for greater solidarity and interdependence, but also for the consolidation of power and control by states and private actors. Traditional monolithic notions of the public sphere and public opinion need rethinking given the complex task of comprehending and informing new modes of digital and data-driven governance. Here attention to the normative significance of informed publics points to a role for both media and international law, and an awareness of their limitations and contemporary transformation. Digital media platforms bring hope for greater interactivity, connection and distribution, but they also bring spectacle, simplification and commodification. The competition for attention and advertising has also damaged traditional media’s economic model, meaning that in certain contexts their ability to perform a watchdog role is weakened. International law must respond to the wider informational challenges posed. I have argued here that informed publics matter more not less in the current climate. Earlier debates in international law scholarship tended to conceive of the connection between media and international law in a unidirectional manner. The media was to assist international lawyers to better educate the public and to thus fashion and to some degree control public opinion. It is now clear that informed publics can and should also themselves inform international law and help to contest and shape its priorities, values and agendas. Nevertheless, it is important to retain a critical approach to narratives of an information-based society and economy, and to continue to investigate the underlying assumptions which shape and drive them. For a true information society

Summary  33 we will need to have adequate material resources and infrastructure shared in an ­equitable way across regions and within societies, and at present this is plainly not the case. There needs to be greater attention given to public and transparent regulation of digital media. This regulation and infrastructure can no longer be viewed in purely domestic or self-regulatory terms. To begin we must now turn to examine in greater depth some illustrative ways in which the media are already said to be regulated by international law, and to explore the kinds of publics ­envisioned by such frameworks.

2 Free Publics In this chapter I examine two areas of international media regulation – ­freedom of expression and international trade law – one of which claims to protect and enhance media freedom, and the other to ensure free markets for the global economy. The aim is to consider each topic from a conceptual perspective using illustrative cases and examples in order to explore the strengths and weaknesses of existing modes of regulation. Freedom of expression emerges as the dominant form of international media law here, but involves significant limitations. On its face human rights law seeks to foster free publics, but does so through an idealised and fairly rigid conception of media freedom, which fails to account for the complex political economy of global digital media. Nevertheless, the diversity and pluralism of ‘free publics’ are enhanced in some ways by the international human rights law framework presented. But in focusing on pluralism the state is often presented as the target for regulation when in fact both public and private media concentration and ownership deserve greater attention. This parallels in some way the approach taken by the World Trade Organization (WTO) dispute settlement system to the deregulation of media markets where trade law frameworks apply. Although it may claim to encourage greater competition, the world trading system does little to constrain the increasing power of global media monopolies. In pointing to the relative absence of media regulation at the WTO I note also that there exist specialised domestic and regional frameworks for media and competition law which both challenge and supplement international forms of regulation, but which fall outside the scope of this study. The broader move to regional integration, exemplified in the EU context, is significant and reinforces the absence observed at the international level. International trade law is a reminder of the limits of international media regulation, and the failure of human rights and trade frameworks to effectively co-ordinate to protect the free publics they claim to serve.1 WTO cases involving the media have been limited. This reflects both conceptual difficulties in fitting the media into existing trade law categories, but also political choices which have allowed many states to retain domestic regulatory sovereignty to both censor and control the flow of information. On the few 1 There is an extensive earlier debate which considers this tension in relation to trade and human rights. See for example: Sarah Joseph, Blame it on the WTO? A Human Rights Critique (Oxford, Oxford University Press, 2011); Andrew Lang, World Trade Law after Neoliberalism: Reimagining the Global Economic Order (Oxford, Oxford University Press, 2011).

Freedom of Expression  35 occasions the WTO dispute settlement system has encountered the media as an object for regulation its principal focus has not been to ensure media pluralism and diversity in terms of content, but rather to open domestic markets to foreign media companies. What we observe then is a patchy and inadequate regulatory approach which currently fails to address the power of global digital media monopolies and purposefully sets aside the kinds of issues which arise within the freedom of expression jurisprudence. This absence is theoretically significant, and connects with broader controversies regarding globalisation, privatisation as a key ingredient of neoliberal practices, and the much-analysed emergence of the multinational corporation as an actor in international law.

I.  Freedom of Expression Freedom of expression is one of the most discussed fields of international human rights law, and a significant area of international regulatory activity as regards the media. It is commonly thought of as a central and facilitative human right, universally recognised and forming the basis for the contestation and safeguarding of other rights.2 In this sense, the theoretical foundations of free expression – what is often termed ‘the right to free speech’ – can be traced back to recognition of the need for unhindered political communication between citizens in their efforts to form and participate in government and the development of society. This democratic rationale – the idea that freedom of expression is necessary for participation in representative government – is accompanied by further justifications including the discovery of truth (sometimes configured in terms of a ‘marketplace of ideas’), self-fulfilment and autonomy.3 Such perspectives reflect a classical liberal approach to the media in which the role of an independent media is institutionalised as a fourth estate or watchdog, ensuring scrutiny of and access to government and the promotion of the rule of law and good governance. In such a model the media acts as a check on tyranny and facilitates the political communication between government and the citizenry, reflecting a generalised conception of the will of the people, or public opinion. Liberal political theory has placed special emphasis upon the role played by freedom of thought and discussion. Thus, John Stuart Mill and others argued for ‘the “liberty of the press” as one of the securities against corrupt or tyrannical government’.4 2 UN Human Rights Committee, General Comment No 34 on Article 19 of the International Covenant on Civil and Political Rights: Freedoms of Opinion and Expression, 102nd sess, UN Doc CCPR/C/ GC/34 (11–29 July 2011) para 3, which states that ‘Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights’; Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton, Princeton University Press, 2001) 90. 3 Eric Barendt, Freedom of Speech, 2nd edn (Oxford, Oxford University Press, 2005) 6–23. 4 John Stuart Mill, On Liberty with The Subjection of Women and Chapters on Socialism (Stefan Collini ed, Cambridge, Cambridge University Press, 1989) 19.

36  Free Publics From this perspective, free expression has to come with limits, as examined below and further in chapter three, which derive in part from utilitarian and pragmatic concerns regarding the protection of democracy and other rights, but which also reflect arguments for the protection of minorities from the tyranny of the majority. Mill ascribed a key role in liberal politics to diversity of opinion, and he saw the press playing an important role in the formation of such opinion.5 Thus, the theoretical foundations for free expression are linked to broader democratic arguments in favour of liberty and the rights of the individual – rights which have come to be elaborated within international human rights law.6 These foundations frame a view of the media in largely optimistic terms as playing a significant political and social function. This utility is to be protected by law and reflected in a tendency towards soft regulation or self-regulation of the press.7 This characterisation of the media as performing an important and distinct function in social and political terms in turn has generated arguments that the media are therefore deserving of special protection. Thus freedom of expression is said to contain a media-specific and stronger-form category of ‘media freedom’.8 The UN Human Rights Committee places particular emphasis on the media in relation to Article 19 of the International Covenant on Civil and Political Rights (ICCPR) noting that ‘A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and enjoyment of other … rights. It constitutes one of the cornerstones of a democratic society’.9 General Comment 34 emphasises that the political function of the media requires media freedom and the ability of media to access information and for publics to ‘receive media output’, noting that: The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion.10

5 ibid 20. 6 As Eric Barendt observes, ‘arguments of political theory are often central to the disposition of free speech cases’: Barendt, Freedom of Speech (2005) 5. 7 Kaarle Nordenstreng notes here that Mill’s thought is often appropriated by contemporary advocates for a free marketplace of ideas, and that in fact ‘he was far from dogmatic about the role of the State’. Nordenstreng provocatively argues that ‘it is a myth that the standard justification for press freedom based on the doctrine of free marketplace of ideas comes from the classics of liberalism’ and in fact ties its more recent development to Cold War ideological conflicts: Kaarle Nordenstreng, ‘Myths About Press Freedom’ (2007) 3 Brazilian Journalism Research 15, 18, see also 20. 8 General Comment 34 makes it clear that freedom of expression includes ‘journalism’, ‘newspapers’ and ‘all forms of audio-visual as well as electronic and internet-based modes of expression’: General Comment 34 (n 2) paras 11 and 12. See further Jan Oster, ‘Theory and Doctrine of “Media Freedom” as a Legal Concept’ (2013) 5 Journal of Media Law 57; Jan Oster, Media Freedom as a Fundamental Right (Cambridge, Cambridge University Press, 2015) especially ch 4. 9 General Comment (n 2) 34, para 13. 10 ibid paras 13 and 20.

Freedom of Expression  37 The concept of media freedom is, however, often deployed by the media ‘as a powerful rhetorical tool’, revealing the media’s institutional power and advocacy for special status.11 This can be taken to a libertarian and self-interested extreme. For example, Joel Simon, the executive director of the Committee to Protect Journalists, echoes First Amendment-style suspicion of government when he implies that defending press freedom involves defending harmful speech.12 Simon argues that: ‘Regulating, controlling, and managing the harmful effects of speech means ceding authority to governments and corporations … let us be mindful of the longterm consequences: censorship and the suppression of critical speech, including journalism’.13 The argument for protecting media freedom as a distinct category depends upon the media fulfilling expectations for media accountability. As Jacob Rowbottom notes, this involves an idealised vision of a media that should ‘hold power to account, inform people and provide a platform for speakers’.14 As we shall see in the discussion below, one key problem with this area of international media regulation is that a free media is too often substituted as the dominant regulatory impulse rather than the free publics in whose interests the media are said to serve. This in fact underscores the way in which freedom of expression and media freedom may have differing justifications due to the institutional contexts through which much (though not all) of the media’s communicative power operates.15 Though different approaches to free expression have been theorised and ­practised, the present system of international regulation developed in the context of post-war efforts to universalise human rights and establish international institutions.16 The foundational document of the modern human rights era, the Universal Declaration of Human Rights of 1948 (UDHR), touched upon the role of the media in a number of ways: privacy;17 freedom of thought, conscience and religion;18 freedom of expression;19 political participation rights;20 educational,21 11 Jacob Rowbottom, Media Law (Oxford, Hart Publishing, 2018) 1. 12 The Constitution of the United States includes a First Amendment which states that ‘Congress shall make no law … abridging the freedom of speech or of the press’. This has been subsequently interpreted to provide a very strong form of media freedom protection. 13 Joel Simon, ‘Defending Press Freedom is Not the Same as Celebrating Great Journalism’, Columbia Journalism Review (2 May 2019), available at www.cjr.org/analysis/press-freedom-defend.php. See also Barendt (n 3) 21–22. See a further example, with The Economist arguing that ‘The law should recognise the right to free speech as nearly absolute’ in ‘Under Attack’ The Economist (4 June 2016), available at www.economist.com/leaders/2016/06/04/under-attack. 14 Rowbottom, Media Law (2018) 2. 15 ibid 11–16, 34. 16 For further detail on the variety of UN institutional contexts see Tarlach McGonagle and Yvonne Donders (eds), The United Nations and Freedom of Expression and Information: Critical Perspectives (Cambridge, Cambridge University Press, 2015). 17 Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, UN Doc A/810 (10 ­December 1948) (UDHR) Art 12. 18 ibid Art 18. 19 ibid Art 19. 20 ibid Art 21. 21 ibid Art 26.

38  Free Publics cultural and scientific rights;22 and in the entitlement to ‘a social and international order’ in which the rights and freedoms enumerated in the UDHR can be realised.23 The protection of freedom of expression has proved to be the most influential and long-lasting of these in terms of international regulation of the media. Freedom of expression is addressed in Article 19, which guarantees that: ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’. From this flows an emphasis in the other international and regional instruments dealing with freedom of expression on two aspects: the right to express oneself; and the right to seek and receive information.24 The ICCPR follows this formula in its own Article 19, and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) provides a detailed right to freedom of expression in its Article 10, which has been the subject of a good deal of litigation and comment.25 The United Nations Declaration on the Rights of Indigenous Peoples provides that indigenous peoples ‘have the right to establish their own media in their own languages and to have access to all forms of non-indigenous media without discrimination’.26 Freedom of expression is the dominant international legal framework affecting the media, and is adapting to emerging digital contexts, as will be explored in chapter four. Whilst universal norms exist and a jurisprudence evolves, much of the significant transnational activity concerning freedom of expression is occurring in regional fora, such as Europe, the Americas or Africa. This has fostered 22 ibid Art 27. 23 ibid Art 28. 24 See further Organization of African Unity, African Charter on Human and Peoples’ Rights (Banjul Charter), CAB/LEG/67/3 rev 5 ILM 58 (27 June 1981) Arts 9 and 27(2); Organization of American States, American Convention on Human Rights (Pact of San Jose) B-32 (22 November 1969) Arts 13 and 14; Inter-American Commission on Human Rights, American Declaration on the Rights and Duties of Man (2 May 1948) Arts IV and XXVIII; League of Arab States, Arab Charter on Human Rights (15 September 1994) Arts 4, 24 and 32. 25 International Covenant on Civil and Political Rights, 999 UNTS 171 (16 December 1966) (ICCPR) Art 19. In relation to ICCPR Art 19 see General Comment 34 (n 2) paras 11, 18 and 19. European Convention on Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (ECHR), as amended by Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 13 May 2004, CETS No 194 (entered into force 1 June 2010) Art 10. 26 United Nations Declaration on the Rights of Indigenous Peoples, GA RES 61/295, UN Doc A/ RES/61/295 (2 October 2007, adopted 13 September 2007) Art 16(1), see also Art 16(2). See further Daniel Joyce, ‘Media: Article 16’ in Jessie Hohmann and Marc Weller (eds), The UN Declaration on the Rights of Indigenous Peoples: A Commentary (Oxford, Oxford University Press, 2018) 328–48; Lorie M Graham, ‘A Right to Media?’ (2010) 41 Columbia Human Rights Law Review 429; United Nations Convention on the Rights of Persons with Disabilities, GA RES 61/106, UN Doc A/RES/61/106 (24 January 2007) Arts 2, 8, 9, 21 and 30. See further Gerard Goggin, ‘Communications Rights, Disability, and Law: The Convention on the Rights of Persons with Disabilities in National Perspective’ (2017) 35 Law in Context 129. Another context of relevance is the area of minority and cultural rights, see further Jacqueline Mowbray, Linguistic Justice: International Law and Language Policy (Oxford, Oxford University Press, 2012) ch 2.

Freedom of Expression  39 a degree of convergence of principles, but also some tensions between national and regional practices on the one hand, and international regulatory standards on the other.27 Conventional analysis pitches the US First Amendment tradition against international and European approaches, which are seen as more accepting of limits to free speech in the context of abuse of rights and concerns over pluralism and access.28 Some regional approaches have emphasised particular aspects of the right. For example, access to information is a notable theme in the InterAmerican jurisprudence.29 The ICCPR introduces the idea that freedom of expression carries correlative duties, responsibilities and limits. Article 19 is derogable, that is to say, states can seek by declaration under Article 4 to depart from normal standards in times of public emergency.30 Any such derogation must be ‘exceptional and temporary’, proportionate and not in conflict with other international law obligations.31 Article 19 is also subject to acceptable restrictions in relation to ‘the rights or reputations of others’, ‘the protection of national security’, or ‘public health or morals’.32 The standard analysis in cases involving qualified rights emphasises that restrictions to rights such as freedom of expression should be provided by law, pursue a lawful purpose, and do so proportionately, such that they can be considered ‘necessary in a democratic society’.33 Freedom of expression as articulated in the ECHR also envisages state regulatory and licensing regimes. A number of limitations are placed on the exercise of the right, and the ECHR is very detailed in this regard.34 The Handyside judgment emphasises that these exceptions are to be construed narrowly and against the state, which bears the burden of showing justification for any interferences, especially that they are proportionate and hence necessary in a democratic society.35

27 A study of the jurisprudence of the European Court of Human rights, the Inter-American Court of Human Rights and the Human Rights Committee in relation to media freedom largely confirms a shared approach to such questions, refuting a thesis of increasing fragmentation: Marjan Ajevski, ‘Freedom of Speech as Related to Journalists in the ECtHR, IACtHR and the Human Rights Committee: A Study of Fragmentation’ (2014) 32 Nordic Journal of Human Rights 118. 28 Frederick Schauer, ‘The Exceptional First Amendment’ in Michael Ignatieff (ed), American Exceptionalism and Human Rights (Princeton, Princeton University Press, 2005) 29–56; Lee C Bollinger, Images of a Free Press (Chicago, University of Chicago Press, 1991) 1. See for example the mediaprotective approach taken in New York Times Co v Sullivan 376 US 254 (1964). 29 Claude Reyes et al v Chile (Merits) (Reparations and Costs) (Inter-American Court of Human Rights, Series C no 151, 19 September 2006). 30 See further UN Human Rights Committee, CCPR General Comment 29 on Article 4: Derogations During a State of Emergency, 72nd sess, UN Doc CCPR/C/21/Rev.1/Add.11 (31 August 2001); General Comment 34 (n 2) para 5. 31 Human Rights Committee, General Comment 29 (ibid) para 2 ff. 32 ICCPR Art 19(3). 33 See for example, Ambeyi Ligabo, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc A/HRC/4/27 (2 January 2007) para 46. For further detail see General Comment 34 (n 2) paras 21–36. 34 ECHR Art 10(2). 35 Handyside v United Kingdom (1976) ECHR 5.

40  Free Publics According to the European Court of Human Rights in this case, there is a narrow margin of appreciation regarding political speech. Thus, the discretion allowed to states in determining the scope of freedom of expression with respect to public affairs is closely circumscribed. This comes back to the connection made in the jurisprudence between free expression and democratic government. The right to freedom of expression is said to constitute ‘one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man’.36 Here the media is seen as performing a watchdog role in democracy.37 At the same time, the limits to free expression imply the need to regulate or constrain the media, to recognise the balancing of interests and rights.

II.  Limits to Media Freedom The most conspicuous way in which free speech is limited is through state censorship, and a perusal of media human rights monitoring sites such as IFEX or the Committee to Protect Journalists reveals ongoing efforts all over the world to intimidate, imprison and silence critical media.38 The crudest cases involve gagging opposition to state policy.39 In Russia, for example, the state controls significant broadcasters and targets not just critical media organisations, but also individual journalists.40 In China, the role of the media continues to be highly contested, as the state retains tight control over media outlets and especially over media content.41 The Chinese state media is conceived by the Government as a tool for marshalling and controlling public opinion, as a guardian of national cultural values and provider of information and education. Yet despite the dangers involved for journalists there have also been examples of the media playing a watchdog role in China, as elsewhere. More recently, however, controls over the media have intensified under the leadership of President Xi.42 36 ibid [48]. Lingens v Austria (1986) ECHR 7 [41]. 37 Bladet Tromsø and Stensaas v Norway (1999) ECHR 29 [59] and [62]. 38 See further IFEX at ifex.org; Committee to Protect Journalists at cpj.org. There is a disturbing contemporary trend to utilise ‘fake news’ laws to do so: Ashwanee Budoo, ‘Controls to Manage Fake News in Africa are Affecting Freedom of Expression’ The Conversation (12 May 2020), available at theconversation.com/controls-to-manage-fake-news-in-africa-are-affecting-freedom-of-expression-137808. 39 See for example the murder of the Ukrainian journalist Georgiy Gongadze, and the resulting case brought by his widow in the European Court of Human Rights: Gongadze v Ukraine (2005) ECHR 2005-X. 40 The assassination of Anna Politkovskaya is a tragic exemplar: Shaun Walker, ‘The Murder that Killed Free Media in Russia’ The Guardian (5 October 2016), available at www.theguardian.com/ world/2016/oct/05/ten-years-putin-press-kremlin-grip-russia-media-tightens. Efforts at control and censorship continue, see for example: Pen International, ‘Russia: New Laws Threaten Freedom of Expression and Media Freedom’ (1 April 2019), available at pen-international.org/news/russia-newlaws-threaten-freedom-of-expression-and-media-freedom. 41 Benjamin L Liebman, ‘Watchdog or Demagogue? The Media in the Chinese Legal System’ (2005) 105 Columbia Law Review 1. 42 Javier C Hernández, ‘“We’re Almost Extinct”: China’s Investigative Journalists Are Silenced Under Xi’ The New York Times (12 July 2019), available at www.nytimes.com/2019/07/12/world/asia/

Limits to Media Freedom  41 State censorship and crude forms of interference have received critical attention in international jurisprudence and in the UN human rights system.43 In the African human rights framework the African Commission on Human and People’s Rights has considered a case from Nigeria where the military Government proscribed a number of media outlets and organisations and moved in soldiers to close down premises and stop the presses. In the case of Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, the Commission found the state in contravention of its international obligations, especially those relating to freedom of expression.44 The African Commission affirmed that the proscription of the newspapers was a violation of Article 9(1) of the African Charter, which protects the right to receive information and express and disseminate opinions. The military Government had ‘failed to prove that proscription of the newspapers was for any reason but simple criticism of the government’ and its actions were ‘disproportionate’.45 Sadly, the targeting of journalists for criticising the actions of governments continues across the world. Recent examples include the detention in 2013 and subsequent conviction of Al Jazeera journalist Peter Greste, along with colleagues Mohamed Fahmy and Baher Mohamed, in Egypt. Greste was subsequently deported to Australia in 2015, but his conviction remains in place and has made it very difficult to continue his work as a foreign correspondent. He is now a significant advocate for media freedom.46 A further contemporary case of state-sponsored attacks on the media is the murder of US based Saudi journalist Jamal Khashoggi in the Saudi Consulate in Istanbul in 2018. This gruesome case has attracted widespread condemnation. In 2019 an extensive investigation into the unlawful killing by the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Agnès Callamard, concluded that ‘Mr Kashoggi’s killing constituted an extrajudicial killing for which the State of the Kingdom of Saudi Arabia is responsible’ and ‘that there is credible evidence, warranting further investigation of high-level Saudi Officials’ individual liability, including the Crown Prince’s’.47 Callamard sets out a range of applicable international law frameworks, but notes that no international organisation or china-journalists-crackdown.html; Marina Svensson, ‘The Rise and Fall of Investigative Journalism in China: Digital Opportunities and Political Challenges’ (2017) 39 Media, Culture & Society 440. 43 See for example General Comment 34 (n 2) paras 42–43. At para 23 the Committee states: ‘Journalists are frequently subjected to … Threats, intimidation and attacks because of their activities … such attacks should be vigorously investigated in a timely fashion, and the perpetrators prosecuted, and the victims, or in the case of killings, their representatives, be in receipt of appropriate forms of redress’. 44 Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria ­(African Commission on Human and Peoples’ Rights, 26th Session, 1–15 November 1999). 45 ibid [43]–[44]. African norms now explicitly call for the protection of media personnel from such attacks: Declaration of Principles on Freedom of Expression in Africa (African Commission on Human and Peoples’ Rights, 32nd Session, 17–23 October, 2002), Principle XI. 46 Peter Greste, The First Casualty: A Memoir from the Front Lines of the Global War on Journalism (Sydney, Viking, 2017). Greste is now an academic and media freedom activist: see Alliance for ­Journalists’ Freedom at www.journalistsfreedom.com. 47 Agnès Callamard, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions: Investigation into the Unlawful Death of Mr Jamal Khashoggi, UN Doc A/HRC/41/CRP.1 (19 June 2019) paras 1–4.

42  Free Publics state offered to mediate between the relevant parties at the time of the murder to ensure access to the crime scene and an adequate criminal investigation. She reflects pointedly that other Member States pondered rather their own national and strategic interests. The United Nations either considered it had no evident means of intervention or elected not to intervene. In retrospect, it is evident that the ultimate casualty … was justice and accountability for Jamal Khashoggi.48

This case points both to the role of special procedures and soft law frameworks in addressing ongoing impunity for the murder of journalists, but it also highlights the need for further re-enforcement of the capacities of the UN to confront issues which frequently are not investigated fully at the domestic level. Diplomatic protection offers some assistance in cases such as Peter Greste’s, but sadly it is also states themselves who contribute to the problem, either as perpetrators or through their omission to act to investigate.49

III. Licensing Freedom of expression is also understood to carry implications for the organisation of the media. As noted above, licensing is contemplated within the European human rights framework. Article 10(1) of the European Convention declares plainly: ‘This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises’. Licensing is a complicated issue and is associated with strong forms of state control and censorship throughout history.50 As a result there are tendencies in free speech jurisprudence which caution against regulation of the media in this way.51 On the other hand, licensing reminds us also of the difficulties in defining what counts as ‘journalism’ and of the contestability of the concept of ‘the media’. From this perspective, attempts to license the media can be seen as efforts to provide clarity about who is a journalist. Part of the regulatory agenda on the state’s part is, then, simply to delimit what constitutes the media, what qualifies as a media organisation, and who is deserving of the legal protection afforded to the media. In the background here is the phenomenon of deprofessionalisation, brought on by increasing access to the means of media production.52 48 ibid para 12. 49 ibid paras 459–72. 50 Rowbottom (n 11) 2–5. 51 General Comment 34 (n 2) paras 39, 44 and 45. 52 ibid para 44. See here the scholarly effort to resolve this issue through a functional approach to determining who is worthy of protection in Oster, Media Freedom as a Fundamental Right (2015) ch 3. Such an approach is appealing in that it can introduce a measure of media accountability and can stretch to accommodate new media actors not connected with traditional institutional or professional settings, but it can develop its own form of rigidity. For example, Oster’s functional approach

Defamation and Insult Laws  43 The Inter-American system has been especially concerned with limiting state licensing schemes.53 In 1985 the Inter-American Court of Human Rights was asked to consider the legality of compulsory licensing of journalists in the light of freedom of expression guarantees in the American Convention (ACHR).54 Whilst the Court ruled that compulsory licensing did not fall into the category of the most extreme violations of freedom of expression, it emphasised that public order in a democracy requires ‘the guarantee of the widest possible circulation of news, ideas and opinions, as well as the widest access to information by society as a whole’.55 Echoing other international courts and bodies, the Inter-American Court insisted that freedom of expression ‘constitutes the primary and basic element of public order of a democratic society, which is not conceivable without free debate and the possibility that dissenting voices be fully heard’.56 In this regard the Court expressly configured a central role for the media, finding that journalism is the ‘primary and principal manifestation of freedom of expression’, and that it is not possible to separate the profession of journalism from the right itself.57 The Court concluded that a compulsory licensing scheme for journalists was not in compliance with Article 13(2) of the ACHR.

IV.  Defamation and Insult Laws Defamation and insult laws have a long history. In the common law, the approach has been to accept restrictions regarding reputation, but to do so on the basis of a presumption against prior restraint of publication. Prior restraint is seen to be excessively restrictive of press freedoms.58 International efforts continue to

includes some new actors involved in public interest reportage but excludes internet intermediaries who disclaim a role as authors (59–60, 268–70). Whilst this may prevent such actors from claiming protection when they exert little editorial responsibility, the failure to include digital media platforms in a definition of ‘media’ contributes in its own way to the problems it seeks to address. Indeed, Jacob Rowbottom reflects that the ‘functional approach [to defining the media] can potentially be as elitist as the institutional approach’: Rowbottom (n 11) 30. I return to this theme when considering the inadequacy of regulation for digital media in ch 4, this volume. 53 Inter-American Commission on Human Rights, Inter-American Declaration of Principles on Freedom of Expression (108th session, October 2000) Principle 6. 54 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism ­(Advisory Opinion) (Inter-American Court of Human Rights, OC-5/85, 13 November 1985). 55 ibid [53]–[56], [69]. 56 ibid [69]. 57 ibid [70]–[74]. 58 See AV Dicey, Introduction to the Study of the Law of the Constitution, 8th edn (Indianapolis, Liberty Fund, 1982) 153–54. Hersch Lauterpacht writes, ‘In England the main feature of the liberty of the press, conceived as absence of previous restraint upon publication, crystallized sufficiently during the eighteenth century for Blackstone to be able to say that it is essential to the nature of a free State’: Hersch Lauterpacht, An International Bill of the Rights of Man (New York, Columbia

44  Free Publics push for the decriminalisation of defamation, especially where there is a perception that state officials or politicians have used defamation laws to silence critical opposition.59 The European jurisprudence, while respecting local traditions, emphasises that defamation and insult laws should not be used to stifle public sphere debate, especially in the context of democratic politics. An Austrian case at the European Court of Human Rights dealt with an editor of a periodical who called the far-right leader Jörg Haider an idiot in the context of a political speech, and was found guilty of ‘insulting’ him, under local laws.60 The journalist argued that his conviction was an interference with his freedom of expression. The European Court held that the limits of acceptable criticism were ‘wider with regard to a politician acting in his public capacity’ and that Haider’s speech was intentionally provocative.61 The majority found that Article 10 had been breached. The Inter-American human rights system has also been strong in denouncing insult or ‘desacato’ laws.62 There have also been a number of European human rights cases which have developed the protection of reputation as a human right in itself. The case law here lacks conceptual clarity with both Articles 10 and 8 involved.63 An important case involved a German newspaper’s publications concerning the drug conviction of a prominent television actor who played a police officer in a popular series. The German courts imposed and upheld injunctions relating to the publications. The media company involved took the case to Strasbourg where the European Court found that the injunctions did involve a violation of ­Article 10.64 The decision offered analysis of the right to reputation under Article 8 and also focused on the margin of appreciation to be afforded to Germany which has a more media-restrictive approach to such publications especially where they do not involve a political figure. In coming to its conclusion the Court re-emphasised the public watchdog role for the press.65 The Court confirmed that the right to protection is established by Article 8, but that for it ‘to come into play … an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to

University Press, 1945) 109. For an example of the prohibition of prior restraint in the international human rights framework see Inter-American Declaration of Principles on Freedom of Expression (n 53) Principle 5. 59 General Comment 34 (n 2) para 47. 60 Oberschlick v Austria (No 2) (1997) ECHR-IV 1226. 61 ibid [29], [31] and [34]. 62 Inter-American Declaration of Principles on Freedom of Expression (n 53) Principle 11. 63 Tanya Aplin and Jason Bosland analyse these developments and argue that the jurisprudence is ‘inconsistent and confusing’: Tanya Aplin and Jason Bosland, ‘The Uncertain Landscape of Article 8 of the ECHR: The Protection of Reputation as a Fundamental Human Right?’ in Andrew T Kenyon (ed), Comparative Defamation and Privacy Law (Cambridge, Cambridge University Press, 2016) 265, 290. 64 Axel Springer AG v Germany (2012) ECHR 227 [110]–[111]. 65 ibid [79]–[81].

Contempt and the Protection of Sources  45 respect for private life’.66 The case also drew upon the principles articulated in the von Hannover case for balancing between Articles 8 and 10, discussed below. These examples illustrate that protection for freedom of speech at the regional and international level will often be greater in cases where the state is seen to censor the press, and greatest of all when what is in issue is political communication.67

V.  Contempt and the Protection of Sources Contempt, like defamation, has long been a basis for limiting freedom of the press in the common law tradition. International courts have acted to protect the press in this regard, notably in the case of efforts to restrain publication or to gain access to anonymous sources used by investigative journalists. The international jurisprudence is generally protective of the media and their sources, drawing on European laws and American free speech advocacy.68 A cluster of cases under the ECHR involve the United Kingdom, and turn on the relationship between freedom of expression and the administration of justice, in the context of proceedings against the press for contempt of court. The paradigmatic case is Sunday Times v United Kingdom, which involved complex facts arising out of an attempt by the Sunday Times to publish stories about litigation and settlements concerning birth defects caused by the drug thalidomide.69 The Sunday Times published an initial article on the subject, and was then prevented by an injunction from publishing a further article. The paper took the case to the European Court of Human Rights, asserting its right to freedom of expression under the European Convention. As recalled earlier, restriction of freedom of expression is justifiable only if it is ‘prescribed by law’, directed to one of a number of stated aims and ‘necessary in a democratic society’.70 The Court found that the phrase ‘prescribed by law’ meant that the law (in this case the common law of contempt) must be adequately accessible and the result reasonably foreseeable, and that in the circumstances of this case this was indeed so.71 Further, the interference had legitimate aims, namely maintaining the authority of the judiciary. However, was such interference necessary in a democratic society? The Court held that ‘necessary’ implies the existence of a pressing social need, which in turn implies that the interference was proportionate to the legitimate

66 ibid [83]. 67 General Comment 34 (n 2) paras 34 and 38. See also Axel Springer AG v Germany (No 2) (2014) ECHR 745 [54], [58]–[59], [77]–[78]. 68 See for example Inter-American Declaration of Principles on Freedom of Expression (n 53) ­Principle 8. See also General Comment 34 (n 2) para 45. 69 Sunday Times v United Kingdom (1979) ECHR 1. 70 ECHR, Art 10(2). 71 Sunday Times v United Kingdom (n 69) [49], [52]–[53].

46  Free Publics aim pursued.72 Although it was possible that an element of ‘trial by newspaper’ could lead to loss of confidence in the courts, the Court found that the Sunday Times article was balanced and could have been interpreted and received by readers in different ways according to their views and situation. In finding that there had been a violation of Article 10, the Court also highlighted, as in other judgments, what it considered the vital importance of freedom of expression.73 The subsequent case of Goodwin v United Kingdom also involved the United Kingdom’s contempt laws.74 A journalist received confidential and potentially damaging financial information from an unsolicited source relating to a major company’s corporate plan. It turned out subsequently that the file had been stolen, and a judge ordered the publishers to disclose information regarding the source. The European Court considered that the order constituted an interference with the right to freedom of expression, and went on to examine whether this could be justified. Again, the Court highlighted the centrality of the right and the particular importance of media safeguards such as the protection of journalistic sources in the context of press freedom and democracy.75 In a strong statement the Court emphasised the important role of the media: ‘Without such protection … the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected’.76 They then applied the proportionality test from the Sunday Times case, noting that the margin of appreciation is ‘circumscribed by the interest of democratic society in ensuring and maintaining a free press’.77 In finding that Article 10 had been violated, the Court decided in this case that the company’s interests were outweighed by the broader public interest in a free press. The judgment has been significant in efforts by free speech advocates to argue for the protection of journalistic sources in national, regional and international settings. A further example in the international criminal law context is the Brdjanin and Talic case at the International Criminal Tribunal for the former ­Yugoslavia (ICTY).78 This case highlighted the role of war correspondents as informal evidence gatherers in international criminal law, and the threat this poses to their work. Discussing the role of war correspondents in the context of the international community’s right to receive ‘vital information from war zones’, the ICTY

72 ibid [59]–[62]. 73 See further Sunday Times v United Kingdom (n 69) [63]–[67]. Though this decision is widely followed and cited, it was a close decision with a strong dissent from a minority who differed not with the reasoning so much as the assessment of the necessity of the interference and the margin of appreciation. 74 Goodwin v United Kingdom (1996) ECHR 16. 75 ibid [39]. 76 ibid [39]. 77 ibid [40]. 78 Prosecutor v Radoslav Brdjanin and Momir Talic (Decision on Interlocutory Appeal) (2002) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No IT-99-36-AR3.9, 11 December 2002).

National Security  47 Appeals Chamber asserted that the news-gathering function of the media must be protected by recognition of a qualified testimonial privilege.79 The Appeals Chamber stated: ‘What really matters is the perception that war correspondents can be forced to become witnesses against their interviewees’.80 The dilemma was configured as a balancing exercise between the public interest in accommodating the work of conflict journalists and the public interest in having all relevant evidence before the court in a criminal case.81 Despite this case law many war correspondents have indeed continued to participate as witnesses in war crimes trials, seeing the information they have gathered as important evidence.

VI.  National Security National security often operates in tension with rights and freedoms in a domestic constitutional setting, and national security or interest arguments are commonly used to regulate the media with reference to the threat and practice of terrorism. Article 19(3)(b) of the ICCPR and Article 10(2) of the ECHR are illustrative of the limits contemplated in international free speech regulatory frameworks in terms of national security. On the one hand, there is a danger of national security being used as a smokescreen for suppression of dissent. On the other hand, the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression observed in 2003, in the post 9/11 environment, that terror is often an attack on the media, and that human rights may be a prophylactic rather than a cause. In his assessment, ‘guarantees of freedom of opinion and expression, freedom of the press and free speech are among the most effective means by which the fight against terrorism may be waged’.82 This reflects concerns that national security may be, and is, used to limit free speech guarantees in ways which damage democratic participation, hamper oppositional journalism, and reduce media diversity and balance.83 Thus, for example, the Inter-American Declaration of Principles on Freedom of Expression insists that terrorism justifies ‘only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies’.84 The UN Human Rights Committee states in General Comment 34 that it is not ‘compatible’ with the restrictions allowed in Article 19(3) of the ICCPR to

79 ibid [38]. 80 ibid [43], cf [44]. 81 ibid [50]. 82 Ambeyi Ligabo, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc E/CN.4/2003/67 (30 December 2002) para 67. 83 See Article 19, The Johannesburg Principles on National Security, Freedom of Expression and Access to Information (November 1996). 84 Inter-American Declaration of Principles on Freedom of Expression (n 53) Principle 4.

48  Free Publics use national security laws ‘to suppress or withhold from the public information of legitimate public interest that does not harm national security or to prosecute journalists, researchers, environmental activists, human rights defenders, or others for having disseminated such information’.85 There is a concern to avoid unnecessary secrecy as a result of counter-terrorism measures which should be proportionate, for ‘The media plays a crucial role in informing the public about acts of terrorism and its capacity to operate should not be unduly restricted’.86 In the European context, there have been a number of cases involving Turkey and suppression of the PKK separatist organisation in which the right to freedom of expression has been at issue. An extreme example involved a newspaper in Istanbul, which was the target of sustained attack.87 Seven people associated with the paper were shot dead; the paper’s offices were bombed; police searched their premises for links to Kurdish ‘terrorists’ and arrested 107 people present; and prosecutions were instigated for ‘terrorist’ and other offences against the state. The Turkish Government claimed that the newspaper was ‘the propaganda instrument of a terrorist organisation’.88 Emphasising again the central importance of freedom of expression ‘as one of the preconditions to a functioning democracy’, the E ­ uropean Court of Human Rights commented that this may require the state to take positive protective measures ‘even in the sphere of relations between individuals’.89 For the Court, the Government’s response to the violence had not been adequate, and their search and arrest operation was not proportionate to the legitimate goals they pursued. Hence Article 10 had been violated. As elsewhere, the Court stressed that the right to freedom of expression extends also to information or ideas that ‘offend, shock or disturb’, and embodies values of ‘pluralism, tolerance and broadmindedness without which there is no “democratic society”’.90 The Court held that, as this case involved a newspaper, any margin of appreciation must be ‘seen in the light of the essential role played by the press for ensuring the proper functioning of a democracy’, that it was incumbent on the press to impart political information and ideas, even divisive ones, and that the public had a right to receive such material.91 This case illustrates the

85 General Comment 34 (n 2) para 30. Despite such a strong position taken in the international human rights jurisprudence, prosecution of public interest journalism and whistleblower sources continues to represent a significant threat in a variety of political systems including established democracies. See for example the police raids on journalists including the Australian public broadcaster in 2019: Kate McClymont, ‘When Sources are Too Afraid to Come Forward’ Sydney Morning Herald (20 October 2019), available at www.smh.com.au/national/when-sources-are-too-scared-tocome-forward-20191020-p532fl.html; Lenore Taylor, ‘Concrete Action Rather than Nice Words are Needed on Press Freedom’ The Guardian (21 October 2019), available at www.theguardian.com/ media/2019/oct/21/concrete-action-rather-than-nice-words-are-needed-on-press-freedom. 86 General Comment 34 (n 2) para 46. 87 Özgür Gündem v Turkey (2000) ECHR 104. 88 ibid [39]. 89 ibid [43]. 90 ibid [56]. 91 ibid [58].

Privacy  49 Court’s view that governments must tolerate criticism, and that failure to protect the media from unwarranted interference is inconsistent with the right to freedom of expression.

VII. Privacy Finally, although a separate area of rights protection, the right to privacy can also act as a limit to freedom of expression and the activities of the media. Article 12 of the UDHR states that: ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks’. Following the example of the UDHR, a variety of international and regional human rights frameworks provide for the protection of privacy. There is also a recently established UN Special Rapporteur on the right to privacy.92 Article 17 of the ICCPR follows closely the UDHR’s wording.93 The ICCPR also envisages privacy as a justifiable limitation on freedom of expression in Article 19 itself.94 This formula is repeated in Article 10 of the ECHR, which allows restriction not only ‘for the protection of the reputation or rights of others’, but also ‘for preventing the disclosure of information received in confidence’.95 Like the ICCPR, the ECHR includes a specific provision relating to privacy – Article 8 – which guarantees the ‘right to respect for private and family life’96 and stipulates that public authorities should not interfere in these domains except in the interests of ‘national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.97 Privacy is multidimensional and has long generated problems in terms of its definition.98 Warren and Brandeis broadly viewed privacy as ‘The more general

92 See the agenda set out for this special procedure by its first mandate holder: Joseph A Cannataci, Report of the Special Rapporteur on the Right to Privacy, UN Doc A/HRC/31/64 (8 March 2016). 93 ICCPR Art 17. See also United Nations Convention on the Rights of the Child, GA RES 44/25, UN Doc A/44/49 (20 November 1989) Art 16. See further UN Human Rights Committee, General Comment No 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation (8 April 1988). 94 ICCPR Art 19(3)(a). 95 ECHR Art 10(2). 96 ECHR Art 8(1). 97 ECHR Art 8(2). 98 Peck v United Kingdom (2003) ECHR 44 [57]; Report of the Special Rapporteur on the Right to Privacy (n 92) paras 20–21. Daniel Solove lists a number of conceptions of privacy: the right to be let alone; limited access to the self; secrecy; control over personal information; personhood; and intimacy. Solove critiques these common conceptions as either too narrow, too broad, or both, and suggests a more pragmatic taxonomy for privacy: Daniel J Solove, Understanding Privacy (Cambridge, Harvard University Press, 2008) ch 2.

50  Free Publics right of the individual to be let alone’, a practical definition which retains utility in the context of intrusive media reporting.99 Kirsty Hughes proposes a more complex contemporary model of privacy in the form of barriers, and notes that often traditional physical barriers are made redundant by changing technology.100 Contexts for privacy protection continue to evolve, but where limitations to media freedom are concerned the focus is generally on informational privacy.101 The public function of the media in terms of freedom of expression is often contrasted with what is said to be the individual interest of privacy.102 In fact both rights share broader social value with privacy ‘facilitating social interaction’103 and ‘the meaningful exercise of autonomy’.104 There has developed a ‘reasonable expectation of privacy’ approach within the jurisprudence which makes it harder for public figures to protect their privacy.105 A distinct genre of cases in the European context involve popular reporting on celebrities. In a 2004 case involving Princess Caroline of Monaco, the European Court upheld her complaint about paparazzi photos taken of her in public places.106 The Court said that states have a positive obligation to protect privacy and provide effective remedies for its invasion. On the question of Article 10 rights, the Court held that: [T]he press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and ­responsibilities – information and ideas on all matters of public interest.107

99 Samuel D Warren and Louis D Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193, 205. 100 Kirsty Hughes, ‘A Behavioural Understanding of Privacy and its Implications for Privacy Law’ (2012) 75 Modern Law Review 806, 814. Hughes proposes the following model: ‘an individual or group experiences privacy when he, she or they successfully employ barriers to obtain or maintain a state of privacy … An invasion of privacy occurs when those barriers are breached and the intruder obtains access to the privacy-seeker’: 807. 101 Beate Roessler and Dorota Mokrosinska observe that ‘Information is private when a person can control access to it herself, or when she can be at least relatively secure in her expectations of being able to monitor access to and disclosure of information’: Beate Roessler and Dorota Mokrosinska, ‘Privacy and Social Interaction’ (2013) 39 Philosophy and Social Criticism 771, 772. Rowbottom (n 11) 59. The Council has developed some guidelines for the media drawing on the jurisprudence: Council of Europe, Guidelines on Safeguarding Privacy in the Media (June 2018), available at rm.coe.int/ guidelines-on-safeguarding-privacy-in-the-media-additions-after-adopti/16808d05a0. 102 For example, Warren and Brandeis argued that the ‘right to privacy does not prohibit any publication of matter which is of public or general interest’: Warren and Brandeis, ‘Right to Privacy’ (1890) 214–16. 103 Hughes, ‘A Behavioural Understanding’ (2012) 822. 104 Roessler and Mokrosinska, ‘Privacy and Social Interaction’ (2013) 779. 105 Kirsty Hughes argues that ‘The values underpinning the right to privacy of public figures are no different from those of other persons and there are other better mechanisms of accounting for societal interests in freedom of expression. We should therefore reject the idea that public figures have fewer or weaker privacy rights or that the process of dealing with their rights is different.’: Kirsty Hughes, ‘The Public Figure Doctrine and the Right to Privacy’ (2019) 78 Cambridge Law Journal 70, 71. 106 von Hannover v Germany (2004) ECHR 294. 107 ibid [58].

Privacy  51 Yet the Court went on to balance this duty of the press against the right to privacy, noting that this case concerned ‘images’ rather than ‘ideas’ and a person without official functions rather than the holder of a public office.108 In an important statement, the Court declared: [T]hat a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions.109

The Court considered that where the media is reporting facts relating to public debate, such as in relation to politicians, it performs its ‘watchdog’ role. However, such a role does not extend to the private life of an individual who holds no public office. Whilst it is possible that the public’s ‘right to be informed’ might extend ‘to aspects of the private life of public figures, particularly where politicians are concerned … this is not the case here’.110 The Court seems to be counterposing celebrity culture to political debate, and reflecting concerns about the excesses of the popular press with respect to the former. In a subsequent case brought by Princess Caroline of Monaco and her husband, the European Court of Human Rights confirmed and extended the broader principles set out in the first von Hannover case.111 But the Court came to a different conclusion as to whether Article 8 had been breached and whether Princess Caroline was a public figure.112 Again, the case related to photos taken involving Princess Caroline and her family, with the accompanying media reports addressing the health of her father, Prince Rainier, as a pretext for publication of photos of the princess and her husband on holiday. The Court concludes that the images in the context of the accompanying report ‘did contribute, at least to some degree, to a debate of general interest’ and made special mention of the press and their information-imparting role, accompanied by the public’s right to receive such information.113 Protecting famous people against the intrusions of paparazzi is one thing, but these protections must be considered against the background of increasing surveillance technologies and threats to privacy posed by the internet and new

108 ibid [59]. 109 ibid [63]. 110 ibid [64]. 111 von Hannover v Germany (No 2) (2012) IHRL 1637 (ECHR 2012) [95], [100]–[103]. A specific framework is suggested for balancing freedom of expression and privacy in such a case (at [108]–[112]) by reference to the following criteria: contribution to a debate of general interest; whether the person involved is a public figure and the subject matter of the report; the prior conduct of the person; the content, form and consequences of the publication; and the circumstances in which the photos were taken. 112 ibid [120] and [126]. 113 ibid [118].

52  Free Publics forms of communication. Public fears have traditionally focused on the threat to privacy arising from government access to personal information and data. The more recent worry has to do with social and commercial settings, the ways in which social media, digital commerce and data-driven surveillance create potential inroads into private life. As Beate Roessler and Dorota Mokrosinska argue, surveillance undermines trust and induces ‘mutual suspicion’, so that ‘A transparent society, a society without privacy, would be a society deprived of meaningful social relations’.114 When we return to consider digital privacy and data protection in chapter four these public or social justifications for privacy will loom large, especially in the context of mass digital surveillance. Finally, beyond this range of limitations allowed within the freedom of expression jurisprudence another significant area addressed is that of media pluralism.

VIII.  Media Pluralism A concern to protect and enhance media pluralism can be found in a variety of contexts from the domestic through to the international.115 The Inter-American Declaration of Principles on Freedom of Expression is an example.116 In the compulsory licensing case examined earlier, the Inter-American court contemplated that monopolies and oligopolies might violate the right to freedom of expression.117 The Declaration of Principles on Freedom of Expression in Africa of 2002 can be seen to parallel and indeed amplify on European concerns with pluralism, and is currently being reassessed to take account of online freedoms.118 African regional standards emphasise the importance of public service broadcasting and a competitive private media market.119 The Declaration of Principles on Freedom of Expression in Africa of 2002 seeks to ‘encourage a diverse, independent private broadcasting sector’, on the basis that state broadcasting monopolies are incompatible with freedom of expression.120 Principle XIV of the African

114 Roessler and Mokrosinska (n 101) 784–85. 115 For a detailed earlier comparative study of the importance of pluralism and diversity in the context of domestic media regulation, see further Lesley Hitchens, Broadcasting Pluralism and Diversity: A Comparative Study of Policy and Regulation (Oxford, Hart Publishing, 2006). 116 Inter-American Declaration of Principles on Freedom of Expression (n 53) Principle 12; see also Principle 13. 117 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Advisory Opinion) (n 54) paras 53–56. For a European case dealing with licensing and free expression see also Autronic AG v Switzerland (1990) IHRL 98 (ECHR 1990). 118 Declaration of Principles on Freedom of Expression in Africa (n 54) Principle III (Diversity). For efforts to update the declaration see further UNESCO, ‘UNESCO Supports Updating African Declaration on Freedom of Expression’ (26 April 2018), available at en.unesco.org/news/ unesco-supports-updating-african-declaration-freedom-expression. 119 ibid Principles V and VI. 120 ibid Principle V(1).

Media Pluralism  53 Declaration is directed towards achieving a diverse media market, and specifically deals with media concentration as a problem that requires states to ‘promote a general economic environment in which the media can flourish’. Principle XIV also prohibits the use of public advertising revenues ‘as a means to interfere with media content’,121 and calls upon states to ‘adopt effective measures to avoid undue concentration of media ownership, although such measures shall not be so stringent that they inhibit the development of the media sector as a whole’.122 The Inter-American and African regional regulatory efforts as regards pluralism are human rights oriented, but often the focus is upon state monopolies, rather than the power of multinational media corporations. This is also reflected in the European freedom of expression jurisprudence.123 Equally, the UN Human Rights Committee’s General Comment 34 emphasises the duty of states to ‘encourage an independent and diverse media’ and to ‘ensure that public broadcasting services operate in an independent manner’ with ‘editorial freedom’ and secure funding.124 Helpfully, the General Comment also contemplates the power of private actors. States are urged, on the one hand, to ‘prevent undue media dominance or concentration by privately controlled media groups in monopolistic situations’, but on the other hand, ‘private media must not be put at a disadvantage compared to public media in such matters as access to means of dissemination/distribution and access to news’.125 As will be made clear in subsequent chapters, attention to both the private and public forms of media power is required to enhance and protect informed publics through regulation.126 In summary, the media, and in particular news-generative journalism, is offered important protections within the freedom of expression jurisprudence. These protections do configure a functional role for the media, but often underplay its institutional power and the potential for it to abuse such power. The ends for protections offered to safeguard media freedom are presented in the form of democratic and free publics. From this human rights perspective the media often inhabits a conflictual relationship with the state, and international human rights jurisprudence becomes one of the main arenas for the negotiation of this conflict. In the interest of free publics the media are to act as a guard in terms of state corruption and also as a provider of information to the citizenry, information which is necessary for the ‘rational’ decision-making upon which liberal representative democracy and the market are said to rely. Yet consistent with the paradox of human rights elsewhere, the media in turn relies upon the state as guarantor for such protections. Media freedom, as outlined in international human rights law, is limited by a range of countervailing interests.



121 ibid

Principle XIV. Principle XIV(3). 123 Informationsverein Lentia and Others v Austria (1993) ECHR 57. 124 General Comment 34 (n 2) paras 14 and 16. 125 General Comment 34 (n 2) paras 40–41. 126 Rowbottom (n 11) 33. 122 ibid

54  Free Publics Human rights frameworks address questions of media pluralism and point to the need to regulate to prevent monopoly and concentration of media ownership, but there are problems with enforcement and also with the capacity of human rights law to capture private actors.127 There is a soft law business and human rights framework with potential applicability here, which I will examine in chapter four.128 On balance, the human rights framework seems ill-equipped to address global media concentration and power. It is important here to consider also how international economic law might be able to respond. To do so I will now examine the limited way in which the WTO system has regulated the media. What effect has international trade law had on the global media economy? What areas are left unattended?

IX.  International Trade Law The world trading system’s foundations lie with the development of a global market economy, coupled with a pragmatic vision of post-war trade, interdependence and stability.129 In trade terms, the media represents a commodity; at the same time it is also a vehicle for social, cultural and political expression. Currently the WTO system is facing a range of challenges associated with the wider contemporary turn from liberal internationalism.130 There has been a shift to regional and bilateral forms of trade liberalisation to attempt to bypass the difficulties faced in progressing further negotiation of the WTO’s frameworks in relation to services and the digital economy.131

127 This issue is raised in the United Nations Special Rapporteur on Freedom of Opinion and ­Expression, the Organization for Security and Co-operation in Europe Representative on Freedom of the Media, the Organization of American States Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights Special Rapporteur on Freedom of Expression and Access to Information, Twentieth Anniversary Joint Declaration: Challenges To Freedom Of Expression In The Next Decade (10 July 2019) Art 3, available at www.ohchr.org/Documents/Issues/ Opinion/JointDeclaration10July2019_English.pdf. 128 See the analysis of problems with applying this framework to the media industry in Sarah Joseph, ‘“Is Fox News a Breach of Human Rights?”: The News Media’s Immunity from the Guiding Principles on Business and Human Rights’ (2016) 1 Business and Human Rights Journal 229. 129 Although members now include significant socialist market economies such as China, as Andrew Lang reflects: ‘there is no question that the regime has evolved largely as a club of market-oriented economies and has implicitly conditioned the practical benefits of membership on adherence to some form of market capitalism’: Andrew Lang, ‘Protectionism’s Many Faces’ (2018) 44 Yale Journal of International Law Online 54, 59. 130 See further Lang (ibid) 55; ‘United States Continues to Block New Appellate Body Members for the World Trade Organization, Risking the Collapse of the Appellate Process’ (2019) 113 American Journal of International Law 822. 131 Caroline Henckels and Markus Wagner, ‘The Rise of Preferential Agreements in Global Economic Governance’ (2019) 20 Journal of World Investment and Trade 629; Merit E Janow and Petros C Mavroidis, ‘Digital Trade, E-Commerce, the WTO and Regional Frameworks’ (2019) 18 World Trade Review S1.

International Trade Law  55 In this context the coverage of media within the existing disciplines remains patchy and uncertain both in juridical and political terms. The framework of applicable rules is to be found in the WTO covered agreements, which are annexed to the WTO Agreement establishing the WTO as an international organisation.132 These agreements include a General Agreement on Tariffs and Trade (GATT),133 which disciplines trade in goods and incorporates the original General Agreement on Tariffs and Trade (GATT 1947),134 the General Agreement on Trade in Services (GATS),135 which regulates trade in services, and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),136 which covers areas of intellectual property such as copyright. These disciplines are built on the core principle of non-discrimination and could potentially apply to the media. For example, the media in certain forms could be understood as a commodity or good and thus fall under the scope of the GATT. Equally GATS disciplines may apply to media services. And finally TRIPS applies to intellectual property rights, especially copyright, on expressions of the media. TRIPS is a minimum standards agreement that incorporates by reference the substantive law of the Paris and Berne Conventions. The Berne Convention for the Protection of Literary and Artistic Works (1971) provides for international copyright protection and the Paris Convention for the Protection of Industrial Property (1967) provides for international patent protection. The World Intellectual Property Organization (WIPO) administers the Berne and Paris Conventions along with other treaties dealing with copyright, broadcasting, satellite transmission and general intellectual property protection. TRIPS includes particular provisions on institutional co-operation and there are further general provisions in the WTO Agreement itself to ensure effective co-ordination between the WTO and WIPO.137 As with freedom of expression, trade law relies on a conception of free publics, but understood principally in terms of markets and consumers. A central principle is that of non-discrimination between Members, which includes two core 132 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 154 (entered into force 1 January 1995). 133 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 190 (entered into force 1 January 1995) annex 1A (General Agreement on Tariffs and Trade; GATT). 134 General Agreement on Tariffs and Trade, opened for signature 30 October 1947, 5 UNTS 194 (entered into force 1 January 1948) (GATT 1947). 135 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 190 (entered into force 1 January 1995) annex 1B (General Agreement on Trade in Services; GATS). 136 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 190 (entered into force 1 January 1995) annex 1C (Agreement on Trade-Related Aspects of Intellectual Property Rights; TRIPS). 137 See TRIPS Arts 5, 63, 68, 69; Agreement Establishing the World Trade Organization, Art V. See also GATS Art XXVI. For further detail on the IP dimension of the trading system see, Mitsuo ­Matsushita, Thomas J Schoenbaum, Petros C Mavroidis and Michael Hahn, The World Trade Organiza­ tion: Law, Practice, and Policy, 3rd edn (Oxford, Oxford University Press, 2015) ch 17.

56  Free Publics disciplines: most-favoured-nation treatment (MFN-treatment); and national treatment. MFN-treatment ensures that Members cannot normally discriminate between other Members they trade with. National treatment means that imported and locally produced goods and services (and intellectual property) are treated equally once the foreign goods have entered a Member’s domestic market. Together these principles claim to ensure fair conditions for trade and to deliver more choice for consumers.138 GATT is compulsory for Members and is the more comprehensive agreement. The non-discrimination principle, and its different emanations of MFN-treatment and national treatment, forms the core of the GATT disciplines. In addition, the agreements provide some general and more specific exceptions on which Members can rely to justify an otherwise GATT-inconsistent measure. One of the general exceptions, listed in Article XX of GATT, allows Members to invoke reasons of public morals and cultural heritage to justify otherwise inconsistent measures. GATS also includes media-relevant exceptions relating to: the protection of public morals and maintenance of public order; and privacy and data protection.139 The GATS aims broadly to liberalise trade in services, but the media-related aspects are optional, with country commitments varying. GATS contains general obligations which apply to all Members and services sectors, as well as specific obligations in areas such as market access140 and national treatment141 for certain designated sectors which individual countries identify in their country schedules.142 Thus GATS allows Members to only accept commitments for those services that they include in their schedules, and to specify the sector coverage and substantive content of their commitments to reflect their domestic interests. Although audio-visual services have generally been excluded from the scope of the GATT, certain forms of traditional media are materialised in a physical form that may constitute a good and thus fall under the scope of the GATT. Trade measures can potentially simultaneously fall under the scope of the GATT and the GATS.143 In 1996 the US requested consultations with Canada concerning certain measures prohibiting or restricting the importation into Canada of split-run editions of periodicals such as the US magazine Sports Illustrated. Canada treated these periodicals as split-run meaning that they were an edition of the magazine printed in Canada, but with 20 per cent or more of the editorial content the same or similar to the US edition, while advertisements were directed at the Canadian

138 See further, John H Jackson, The Jurisprudence of GATT and the WTO: Insights on Treaty Law and Economic Relations (Cambridge, Cambridge University Press, 2000) ch 5. 139 GATS Arts XIV (a) and XIV(c)(ii); security exceptions are also provided for in Art XIV bis. 140 GATS Art XVI, while Art XVI(2) specifies limitations. 141 GATS Art XVII. 142 GATS Art XX. 143 See further Fiona Smith and Lorna Woods, ‘A Distinction Without a Difference: Exploring the Boundary Between Goods and Services in the World Trade Organization and the European Union’ (2005) 12 Columbia Journal of European Law 1; Tania Voon, Cultural Products and the World Trade Organization (Cambridge, Cambridge University Press, 2007) 71–72.

International Trade Law  57 market. In other words, this was a magazine published in Canada with targeted advertising content, but containing largely US content. Three Canadian measures were at issue. The first was a tariff which aimed to prohibit such split-run periodicals. The second was an excise tax on such periodicals. The third involved the application of ‘international’ commercial postal rates to these editions as ‘foreign publications’. The US claimed these measures were inconsistent with GATT ­Article XI which seeks to eliminate quantitative restrictions on imported goods. The US also alleged that Canadian tax measures relating to split-run periodicals and the application of favourable postal rates to certain Canadian periodicals were inconsistent with GATT Article III which ensures national treatment for internal taxation and regulation. A panel of the Dispute Settlement Body found Canada in violation of GATT rules.144 Canada appealed and the Panel’s decision was largely upheld by the Appellate Body.145 Though largely a GATT-focused case, the Appellate Body agreed with the Panel that the GATT and GATS ‘can co-exist and that one does not override the other’.146 This was in response to Canada’s argument that the second measure (excise tax) was directed at advertising and hence was a GATS (not a GATT) issue.147 For Canada, in this case, their local media was seen as representative and constitutive of Canadian culture and identity, and an arena in which the state should be given some discretion to protect its own cultural integrity.148 And yet the Panel was emphatic that ‘the ability of any Member to take measures to protect its cultural identity was not at issue in the present case’.149 However, Canada – ­Periodicals reveals the way in which a narrow focus on the media in purely trade terms can obscure the cultural, social and political dimensions of media activity, the very aspects which are said to underpin its functional significance within the freedom of expression jurisprudence.150 A subsequent case at the WTO involving the US and China provides a further example of this tension. The US sought to challenge a range of Chinese ­measures which supported Chinese content censorship in its domestic market.151 144 Panel Report, Canada – Certain Measures Concerning Periodicals, WTO Doc WT/DS31/R (14 March 1997). 145 Appellate Body Report, Canada – Certain Measures Concerning Periodicals, WTO Doc WT/DS31/ AB/R (30 June 1997) 35. 146 ibid 19. 147 ibid 3–4. 148 Panel Report, Canada – Certain Measures Concerning Periodicals (n 144) para 3.5. 149 ibid para 5.45. 150 Witness here also the earlier development by UNESCO of an alternative treaty focused upon the protection of cultural diversity: UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted 20 October 2005, CLT-2005/CONVENTION DIVERSITE-CULT REV (entered into force 18 March 2007). 151 Panel Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WTO Doc WT/DS363/R (12 August 2009) and WTO Doc WT/DS363/R/Corr.1 (19 August 2009); Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WTO Doc WT/DS363/AB/R (21 December 2009).

58  Free Publics The measures regulated activities concerned with the importation and distribution of reading materials such as newspapers and books, audio-visual home entertainment products such as DVDs, sound recordings and films. The US characterised such measures as violating commitments undertaken as part of China’s accession to the WTO, and alleged that some were inconsistent with Article III(4) of GATT (discrimination) and Article XVI and/or Article XVII of GATS (discrimination and denial of market access). China was in a slightly different position here as it had scheduled a range of potential media services as part of the political compromise involved in achieving its membership of the WTO.152 The broader case made by the US was that the ability of foreign companies to import or export media content to China and to fairly operate within the Chinese market was unfairly limited.153 China characterised many of the measures as necessary to ‘protect public morals’, invoking Article XX(a) of GATT and also sought to rely on conceptual distinctions between media goods and services to interpret existing commitments in more limited ways.154 The Panel Report, which was largely upheld by the Appellate Body,155 did not contest China’s ability to censor content in order to protect morals, but did find that a number of measures adopted to do so were in contravention of WTO disciplines and China’s commitments. Of significance here was the US argument that there were alternative ways for China to censor content which would not involve restrictions on foreign media companies. Another important aspect of the case was the broader finding that analysis of trade in services should be technology-neutral.156 The decisions are lengthy and technical, but illustrate the way in which trade law positions itself as being neutral in terms of media content regulation, protecting both the state’s ability to censor and foreign media companies’ ability to trade, but without engaging in any human rights analysis of the censorship underlying the dispute.157 Nevertheless the case represents an early setback for China in terms of its censorship structures and their interface with trade law. From China’s perspective it has resulted in significant restructuring of its domestic media economy.158 But ultimately the case has (unsurprisingly) not limited the Chinese practice of 152 Weihuan Zhou, China’s Implementation of the Rulings of the World Trade Organization (Oxford, Hart Publishing, 2019) 94, 98–100. 153 For a useful analysis of the case in trade law terms see Joost Pauwelyn, ‘Squaring Free Trade in Culture with Chinese Censorship: The WTO Appellate Body Report on China – Audiovisuals’ (2010) 11 Melbourne Journal of International Law 119. 154 Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (n 151) paras 380, 398. 155 ibid paras 1–10, 414–17. 156 Pauwelyn, ‘Squaring Free Trade in Culture with Chinese Censorship’ (2010) 139. 157 Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (n 151) paras 233, 336–37. 158 Weihuan Zhou provides a careful and detailed analysis of the significance of this case for China and its implementation efforts, concluding that ‘China has brought all major measures into compliance except for films’: Zhou, China’s Implementation (2019) 112, see also 128 and more generally chs 3 and 5. Zhou notes that ‘China has continuously liberalised its service industry in implementing its WTO commitments’, 93.

International Trade Law  59 censorship in any meaningful way.159 Again this illustrates that while the world trading system has encouraged considerable structural change in terms of liberalising domestic media markets, this has not always brought the accompanying political changes once promised by advocates for liberal internationalism. Free markets for the global media economy do not necessarily deliver media freedom or enable publics to freely access information. From a more internal trade law perspective the case is also noteworthy for its attempt to clarify the applicability of the GATT/GATS framework to media in various forms, but this effort has not generated any further media-focused jurisprudence at the WTO.160 Indeed practical and conceptual problems remain especially in terms of applying GATS to converged and digital forms of media.161 This is not unique to media, and Andrew Lang argues that the GATS framework has generated ‘many more questions than answers about what its effects were likely to be, and even about what the core concepts upon which it was founded actually meant’.162 For example, Tania Voon earlier argued that ‘in some cases it may be difficult to distinguish between telecommunications services and audiovisual services’ and that this required further conceptual clarification.163 Indeed, while audio-visual services have been kept out of the compulsory aspect of the GATS regime, telecommunications are specifically covered under GATS.164 This creates the possibility for the digital media to be regulated in the category of telecommunications as well as audio-visual services. Further negotiations on ‘basic telecommunications’ (by which is meant trade in telecommunications transport networks and services)165 took place between 1994 and 1998. These negotiations resulted in the Fourth Protocol to GATS which entered into force in February 1998 and enables annexation of basic telecommunications schedules in addition to those provided for in the Uruguay Round.166 The (compulsory) Annex on 159 Zhou (n 152) 115–16. 160 Subsequent challenges to state media restrictions in terms of trade law have been rare, but see Ukraine – Measures Related to Trade in Goods and Services: Request for Consultations by the Russian Federation, WTO Doc WT/DS525/1 (1 June 2017). In this request Russia challenges a range of ­Ukrainian measures restricting bilateral trade with Russia, including the suspension of accreditation of Russian journalists and the prohibition of distribution and broadcasting of Russian films, television, documentaries, cartoons and video material in Ukraine: paras 9 and 10. 161 Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (n 151) paras 193–95. 162 Lang, World Trade Law (2011) 283. 163 Voon, Cultural Products (2007) 72, 73. 164 See Fourth Protocol to the General Agreement on Trade in Services, adopted 30 April 1997, 36 ILM 354 (entered into force 5 February 1998); GATS, Annex on Telecommunications, available at www.wto.org/english/tratop_e/serv_e/12-tel_e.htm; WTO, Telecommunications Services: Reference Paper (24 April 1996). See further Lang (n 1) 284–90. 165 Ministerial Decision on Negotiations on Basic Telecommunications (14 April 1994) para 1 (part of a package of decisions in the Uruguay Round adopted by the Trade Negotiations Committee on 15 December 1993 and 14 April 1994). 166 This protocol is also sometimes referred to as the ‘basic telecommunications agreement’: Fourth Protocol to the General Agreement on Trade in Services, adopted 30 April 1996, 36 ILM 354 (entered into force 5 February 1998). Negotiations also resulted in a Telecommunications Reference Paper

60  Free Publics Telecommunications attached to GATS applies to measures affecting ‘access to and use of public telecommunications transport networks and services’ but not those affecting ‘the cable or broadcast distribution of radio or television programming’.167 ‘Telecommunications’ are defined as ‘the transmission and reception of signals by any electromagnetic means’.168 The Annex also recognises the importance of institutional co-operation with other international organisations such as the International Telecommunication Union (ITU).169 As we will see in chapter four, telecommunications remains a significant regulatory paradigm in the context of the internet and digital media, and in addressing the broader frontier of digital trade. It is clear, then, that international trade law needs further development and clarification with respect to the media, but that this has been difficult to achieve with ‘the de facto collapse of the WTO’s Doha round’ and a move towards preferential trade agreements outside of the WTO.170 This gap within the WTO framework also reflects the fact that it does not operate as an international competition law. The focus of trade law in terms of media regulation has been on opening market access. This has left issues of media monopoly to be addressed through an often domestic lens.171 As noted earlier this is also now an important area of regulatory concern for the European Union where media regulation takes its own highly specialised form.172 The European Charter of Fundamental Rights included in its provisions for freedom of expression the injunction that ‘freedom and pluralism of the media shall be respected’.173 At the same time, the jurisprudence of the European Court of Justice (CJEU) increasingly touches on the regulation of the media, often in the area of competition law.174 In  the European Union these concerns setting out basic principles for a regulatory framework enabling market access commitments. These included matters such as competition, transparency, licensing, spectrum allocation and universal service which protects access for those in remote areas where this would otherwise not be commercially viable: WTO, Telecommunications Services: Reference Paper (24 April 1996). 167 GATS Annex on Telecommunications (n 164) para 2. See further Panel Report, Mexico – Measures Affecting Telecommunications Services, WTO Doc WT/DS204/R (1 June 2004). 168 GATS Annex on Telecommunications (n 164) para 3(a). 169 ibid para 6. 170 Henckels and Wagner, ‘The Rise of Preferential Agreements’ (2019) 629, see also 630–32. 171 Lawrence Lessig writes of the problems generated by the US media market: ‘If a handful of companies control access to the media, and that handful of companies gets to decide which political positions it will allow to be promoted on its channels, then in an obvious and important way, concentration matters’: Lawrence Lessig, Free Culture: The Nature and Future of Creativity (New York, Penguin Books, 2004) 168, see also 162–68, 269–70. 172 EU media law is an important arena in transnational media regulation which both complements and points to the gaps within international media law, but it is comprehensively addressed elsewhere. See for example: Jan Oster, European and International Media Law (Cambridge, Cambridge University Press, 2016); Perry Keller, European and International Media Law: Liberal Democracy, Trade, and the New Media (Oxford, Oxford University Press, 2011); Jackie Harrison and Lorna Woods, European Broadcasting Law and Policy (Cambridge, Cambridge University Press, 2007). 173 Charter of Fundamental Rights of the European Union, OJ C 364/01 (entered into force 1 Dec 2009) Art 11(2). 174 See further, EU Commission, ‘Competition in the Media Sector’, available at ec.europa.eu/competition/sectors/media/overview_en.html; Oster, European and International Media Law (2016) ch 10.

Summary  61 have also resulted in the establishment of a regulatory framework for audio-visual media, the recently updated Audio Visual Media Services Directive.175 Unsurprisingly in its earlier form as the Television Without Frontiers Directive (aimed at traditional television broadcasts), this was challenged in the Uruguay Round by US trade negotiators, who argued that measures favouring European content were protectionist and inconsistent with the GATT. For its part, the European Union argued for a cultural exception.176 A ‘free publics’ conception of international media law is revealed in quite different ways in human rights and trade law, but often reflects an ideological model of media or market freedom as the dominant regulatory motivation.177 As has been noted in the US context, such an approach can result in freedom for media corporations at the expense of the quality of news and flow of information more generally.178 Informed publics are displaced at the very moment they are most energetically evoked. Freedom of expression is the dominant area of international media law with an established jurisprudence and frameworks which international trade law has so far failed to match or effectively engage with. With certain exceptions, international trade law is revealed as largely absent in the regulation of media and this absence is intensified in the context of digital media which challenges established conceptual categories within the WTO framework. It is also necessary to take account of the digital impacts upon freedom of expression jurisprudence, now that ‘a global network for exchanging ideas and opinions … does not necessarily rely on the traditional mass media intermediaries’.179 I return to consider these themes more fully in chapter four.

X. Summary In summary, freedom of expression is a significant and dynamic field of international regulation of the media. Human rights approaches to media regulation can be seen to emphasise the media’s democratic function as watchdog. The media is

175 Directive 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities [2018] OJ L 303/69. 176 David Goldberg, Tony Prosser and Stefaan Verhulst, EC Media Law and Policy (London, Longman, 1998) 62–63. 177 An influential though reductive critique of the ideological construction of the media as democratic watchdog can be found in the propaganda model of media proposed by Herman and Chomsky who question the popular ‘democratic postulate … that the media are independent and committed to discovering and reporting the truth, and that they do not merely reflect the world as powerful groups wish it to be perceived’: Edward S Herman and Noam Chomsky, Manufacturing Consent: The Political Economy of the Mass Media (London, Vintage, 1994) xi. 178 Sam Lebovic, Free Speech and Unfree News: The Paradox of Press Freedom in America (Cambridge, Harvard University Press, 2016). 179 General Comment 34 (n 2) paras 15, 18 and 19.

62  Free Publics valued for its role in publicity and deliberation. Also implicit are limits to freedom of expression in areas such as censorship, licensing, defamation, contempt, national security and privacy. There is some evidence of concern regarding media ownership and the need to protect diversity and ensure pluralism. Overall, however, the emphasis is on the regulation of media practices and their protected role in democracy. International law and regulation in this mode aims to shelter the media from state interference, so that it can perform its role as public watchdog. Thus, the media are left largely to self-regulate, with laws crafted to facilitate rather than constrain media activity. This reflects the theoretical foundations of freedom of expression in liberal political philosophy, with its emphasis on safeguarding liberties. The current framework of WTO rules applicable to the media also emphasises freedom but in the form of deregulation and market access, and through a framework which is partial, outdated and highly controversial. WTO norms deal with the media as goods and services, allowing states to exempt media services from regulation. Telecommunications regulation is a potential avenue for WTO reform in the context of convergence, as is a developing agenda regarding digital trade. But overall the emergence of global markets for the media has been accompanied by a fragmented regulatory framework in which a diversity of systems overlap in a way that remains significantly undefined and which fail to address important issues such as media ownership and concentration. As we shall also see in the next chapter the regulatory vision of free publics fails to address the power of the media itself and its own connections with violence and the abuse of rights. It is necessary then to consider the ways in which human rights law, humanitarian law and international criminal law have dealt with the media’s power for both good and bad and its capacity to endanger publics through propaganda in both traditional and increasingly computational forms.

3 Endangered Publics My focus so far has been on the largely optimistic account of the media that accompanies the protection of freedom of expression and the regulation of media goods and services at the World Trade Organization (WTO). These two areas of international media regulation claim a commitment to free publics, though with differing accounts of media freedom’s significance. Of the two areas of regulation, freedom of expression is the most developed and dominant framework, with its emphasis on democracy and the public sphere. However, the freedom of expression jurisprudence generally underplays the media’s own potential to endanger publics except by reference to what are regarded as the proper limits of free expression and media activity. I turn now to explore these limits more deeply with reference to international legal norms such as incitement and propaganda which more fully reflect the connections between media, international law and violence, and in turn generate an account of endangered publics. The chapter considers a range of areas within international human rights law, international criminal law and international humanitarian law where this intersection is addressed. I start by outlining protections within international human rights law regarding incitement, hate speech and propaganda. I turn to consider some cases within international criminal law which concern the media. One example involves successful prosecution of crimes associated with media genocide in Rwanda, and this will be analysed alongside the contemporary example of the genocidal potential of social media in Myanmar. I then consider the place of the media within international humanitarian law which resonates with some approaches to media protection considered in chapter two, but also at times figures the media as a legitimate target during war. The image of endangered publics which emerges in these varied international law frameworks does counter the more positive ‘good media’ we encountered in chapter two. But does the ‘bad media’ image by contrast offer too simple a picture of media power and downplay the responsibilities and agency of publics? A problem here is that the model of endangered publics which emerges in this area of international media law tends to configure the dangers of media power as being exceptional rather than structural. This itself contributes to a failure to connect media violence with its economic and political power. This failure in some sense replicates the problems seen earlier with a free publics model of regulation with its emphasis on freedom of expression and market freedoms. S­ imilarly, there is also an emerging recognition of the significance of digital

64  Endangered Publics media, and this chapter concludes with contemporary analysis of cybersecurity ­frameworks and computational forms of propaganda, before chapter four then addresses in greater depth the nascent frameworks for digital media regulation.

I.  Incitement, Hate Speech and Propaganda I begin here with the area of abuse of rights, where media practices threaten free expression, but do so whilst claiming its imprimatur. Concepts of incitement and hate speech reflect an attempt to link expression with its (at times violent and, in the extreme case, genocidal) consequences. Conceptually, then, incitement falls under the broader category of abuse of rights, which aims to curb invocations of rights that have anti-social or illegal consequences, in order to protect the community’s interests.1 This notion of abuse of rights is a civil law concept which has been adapted to the international law context and is sometimes seen as a general principle of international law or as part of customary international law. At stake here is the media’s potential role in the practice and production of violence, resulting in the abuse of human rights, such as those relating to minority protection, non-discrimination and freedom of religion. Complex balancing in relation to community and individual rights, along with questions of culture and causation, are involved.2 A contextual analysis is often required, and there always remains the possibility for states to misuse laws prohibiting incitement to target opponents and restrict or criminalise freedom of expression.3 International law is confronted with questions relating to media power and its effects, and indeed the nature of its referent publics. Such questions remain controversial and contested. Writing in 1933, Hersch Lauterpacht recognised that the law might develop as the notion of an international community itself strengthened, such that the notion of abuse of rights might be employed to ensure an equitable and peaceful use of evolving communications technologies. He questioned, ‘What would be the position if a State arbitrarily and wantonly placed obstacles in the

1 See for example European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (ECHR), as amended by Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 13 May 2004, CETS No 194 (entered into force 1 June 2010) Art 17. See further Hersch Lauterpacht, The Function of Law in the International Community (Oxford, Clarendon Press, 1933) ch XIV, esp at 298 where he concludes that ‘the prohibition of abuse of rights is a general principle of law’. See also Michael Byers, ‘Abuse of Rights: An Old Principle, A New Age’ (2002) 47 McGill Law Journal 389, esp 397. 2 Lauterpacht (ibid) 286. 3 Human Rights Council, Annual Report of the United Nations High Commissioner for Human Rights, Addendum, Report of the United Nations High Commissioner for Human Rights on the Expert Workshops on the Prohibition of Incitement to National, Racial or Religious Hatred, 22nd sess, UN Doc A/HRC/22/17/Add.4 (11 January 2013) paras 7, 9–12; David Kaye, Report of the Special ­Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc A/74/486 (9 October 2019) paras 1 and 4.

Incitement, Hate Speech and Propaganda  65 way of a normal and orderly development of wireless communication?’4 This line of thinking has particular resonance today. The international human rights framework takes account of both incitement and the broader notion of abuse of rights.5 Article 20 of the International Covenant on Civil and Political Rights (ICCPR) introduces prohibitions of propaganda for war, hate speech and incitement, and follows closely Article 19, which deals with free expression and which we have seen recognises the possibility of lawfully constituted restraints upon free expression. What we now term ‘hate speech’ is prohibited in terms of ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’.6 The Human Rights Committee in General Comment 11 clarifies that the prohibitions in Article 20 ‘are fully compatible with the right of freedom of expression as contained in Article 19, the exercise of which carries with it special duties and responsibilities’.7 The Committee adds, however, that the prohibitions in Article 20(2) with regard to hate speech should not be understood to prevent advocacy concerning the lawful exercise of selfdefence, self-determination or independence.8 The balancing exercise involved with Article 20 is complex and can carry serious implications for media freedom. Former United Nations High Commissioner for Human Rights Navanethem Pillay acknowledges that ‘Properly balancing freedom of expression and the prohibition of incitement to hatred is no simple task’.9 Accordingly the Office of the United Nations High Commissioner for Human Rights has developed further guidance in the form of the Rabat Plan of Action.10 As a soft law guide the Rabat Plan of Action states that ‘Article 20 of the Covenant requires a high threshold because, as a matter of fundamental principle, 4 Lauterpacht, The Function of Law (1933) 303. 5 See for example ICCPR Art 5, which operates as an abuse of rights provision in relation to other rights protected such as freedom of expression in Article 19. International Covenant on Civil and Political Rights, 999 UNTS 171 (16 December 1966) (ICCPR) Arts 5 and 19. 6 ICCPR Art 20(2). See also the effort to conceptually draw together a range of offences and frameworks involved under the umbrella term ‘atrocity speech law’ in order to usefully connect speech offences with violence: Gregory S Gordon, Atrocity Speech Law: Foundation, Fragmentation, Fruition (Oxford, Oxford University Press, 2017). 7 UN Human Rights Committee, General Comment No 11 on Article 20 of the International Covenant on Civil and Political Rights: Prohibition of Propaganda for War and Inciting National, Racial or Religious Hatred, 19th sess (29 July 1983) para 2. This is further supported by the Committee’s clear statement ‘articles 19 and 20 are compatible with and complement each other’ in UN Human Rights Committee, General Comment No 34 on Article 19 of the International Covenant on Civil and Political Rights: Freedoms of Opinion and Expression, 102nd sess, UN Doc CCPR/C/GC/34 (11–29 July 2011) para 50. 8 General Comment No 11 (ibid) para 2. 9 Annual Report of the United Nations High Commissioner for Human Rights, Addendum, Report of the United Nations High Commissioner for Human Rights on the Expert Workshops on the Prohibition of Incitement to National, Racial or Religious Hatred (n 3) para 9. 10 Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred that Constitutes Incitement to Discrimination, Hostility or Violence, Appendix to Annual Report of the United Nations High Commissioner for Human Rights, Addendum, Report of the United Nations High Commissioner for Human Rights on the Expert Workshops on the Prohibition of Incitement to National, Racial or Religious Hatred (n 3) (5 October 2012) (Rabat Plan of Action).

66  Endangered Publics limitation of speech must remain an exception’.11 In emphasising the importance of freedom of expression, a structured test is established to guide and restrict the criminalisation of speech in this area – factors include context, the speaker’s status, intention, content and form, the extent and reach of the speech and imminence in terms of any resulting crime.12 David Kaye as UN Special Rapporteur on Freedom of Expression emphasises that restrictions upon speech ‘must be exceptional’ and that Article 20 of the ICCPR is subject to the ‘strict and narrow conditions’ set out in Article 19(3) (examined in chapter two).13 Nevertheless, reflecting on the ­European human rights context, Jan Oster is less speech-protective in his analysis than Kaye, and argues that ‘publications that do not aim at reaching understanding, but incite hatred, and thus are directed against fundamental values of a democratic society, such as human dignity, tolerance and peacefulness, enjoy very little protection under international human rights law’.14 Clearly despite statements highlighting universality and compatibility, there continue to be tensions here reflecting the differences between domestic, regional and international approaches. David Kaye’s approach represents principally the interests of freedom of expression (there is no special rapporteur on hate speech) and illustrates the enduring influence of a US-style approach to hate speech. This dynamic has only intensified in the context of a libertarian Silicon Valley culture, which has in turn shaped the design, structure and values of American digital media platforms.15 Hate speech is indeed the subject of domestic legislation in many countries, resulting in a variety of laws which deal with racial, national or religious discrimination, including statutes prohibiting Holocaust denial.16 The validity of these laws has been challenged at the international level. For example, the case of Faurisson v France involved a complaint to the Human Rights Committee by a French academic convicted under a law that criminalised Holocaust denial.17 The Committee dismissed the complaint, finding that the facts of the case did not amount to a violation by France of Mr Faurisson’s freedom of expression as guaranteed by Article 19 of the ICCPR.18 In the words of the Committee, Faurisson’s

11 Rabat Plan of Action, para 19. 12 Rabat Plan of Action, para 29. See also David Kaye’s report on online hate speech which supports this view: Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (n 3) esp para 28. 13 ibid para 28. 14 Jan Oster, Media Freedom as a Fundamental Right (Cambridge, Cambridge University Press, 2015) 223, see also 227–30. This analysis is also supported by Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (n 3) para 4. 15 I return to this theme when discussing the scholarship of Alice Marwick in ch 6, this volume. 16 There is concern that there is a ‘lack of consensus’ on the meaning of hate speech which can lead to domestic laws being crafted less to protect against incitement and more to ‘enable infringements on a wide range of lawful expression’: Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (n 3) para 1. 17 Robert Faurisson v France (1996) 4 IHRR 444, UN Doc CCPR/C/58/D/550/1993 (8 November 1996) [9.3], 455. 18 ibid [10], 456.

Incitement, Hate Speech and Propaganda  67 conviction ‘did not encroach upon his right to hold and express an opinion in general’ but rather reflected his own violation of the rights and reputation of others.19 In the later case of Ross v Canada a teacher had been removed from his post following expression of anti-Semitic opinions. He too took his case to the UN Human Rights Committee.20 Again, however, the Committee found that there had been no violation of the ICCPR, stating that: [A]s held in Faurisson v France, restrictions may be permitted on statements which are of a nature as to raise or strengthen anti-Semitic feeling, in order to uphold the Jewish communities’ right to be protected from religious hatred. Such restrictions also derive support from the principles reflected in Article 20(2) of the Covenant.21

Article 20 of the ICCPR is not, as such, replicated in the regional human rights frameworks. Article 13(5) of the American Convention on Human Rights addresses incitement, but as a direct limit to freedom of expression, rather than as a free-standing prohibition.22 Article 17 of the European Convention prohibits the abuse of rights, including that of freedom of expression as set out in Article 10, but also lacks an explicit ban on incitement.23 The African Charter upholds the right to freedom of expression and the right to receive information in Article 9.24 Again, there is no specific ban on incitement, but several related provisions are relevant. The first is Article 2, which guarantees the enjoyment of the rights and freedoms in the Charter ‘without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status’. This operates to limit discriminatory forms of expression, and can also be read with Articles 27, 28 and 29 to limit hate speech. These Articles assert duties concomitant with the rights protected, and have the potential to be invoked for the sake of ensuring that the exercise of rights occurs lawfully, without discrimination and in a peaceful, respectful and inclusive manner. The approach of the regional instruments to incitement is reflective of the role which context and local community play in determining what constitutes hate speech.25 However, the transmission of hate speech increasingly crosses national boundaries, and what may be acceptable in one community may be deeply offensive in another. In such situations, national regulation remains partial

19 ibid [9.5], 455. 20 Malcolm Ross v Canada (2000) IHRR 322, UN Doc CCPR/C/70/D/736/1997 (18 October 2000) 322. 21 ibid [11.5], 335. 22 Organization of American States, American Convention on Human Rights (Pact of San Jose) B-32 (22 November 1969) Art 13(5). 23 ECHR, Arts 10 and 17. 24 Organization of African Unity, African Charter on Human and Peoples’ Rights (Banjul Charter), CAB/LEG/67/3 rev 5 ILM 58 (27 June 1981) Arts 9, 2, 27–29. 25 These variations of approach are summarised in Report of the Special Rapporteur on the ­Promotion and Protection of the Right to Freedom of Opinion and Expression (n 3) paras 26–27.

68  Endangered Publics and inadequate. Audiences can multiply rapidly in a digital media context, as ­illustrated in the Danish Cartoon controversy, where what began as a national debate rapidly expanded to become a global issue. The controversy concerned publication of cartoons depicting the Prophet Muhammad, first in 2005 in a Danish newspaper and then subsequently in other European publications and online, which resulted in protests in Europe and in a number of Muslim countries on the grounds that the images were blasphemous. There followed a wide-ranging debate, with international and regional institutions urging tolerance and calling for restraint and peaceful resolution.26 Fundamentally the manner in which this became a global media event confirms that media regulators now have to think about audiences not only within but also beyond their borders – media regulation needs to be considered at the international level as well as at the regional and domestic levels. A subsequent example is the French satirical publication Charlie Hebdo, which generated controversy by publishing offensive cartoons depicting the Prophet Muhammad. Two terror attacks targeted the weekly magazine’s offices in Paris. The second attack on 7 January 2015 resulted in the deaths of 12 staff. Although many in France had condemned the earlier publications for the offence caused, in the aftermath of the killings a social media campaign, ‘Je suis Charlie’, saw the debate in France shift back to a wider condemnation of terrorist violence and defence of freedom of speech.27 These examples point to the importance of international standards such as ICCPR Article 20, and to the international jurisprudence’s recognition of certain limits to free expression in the area of incitement. However, they remind us also of the complexity of the task of determining what is and is not hate speech. The challenges involved in the balancing process required are further illustrated in a landmark case before the European Court of Human Rights with significant implications for media reporting. In the Jersild case, Denmark had prosecuted a local media organisation for broadcasting statements by fascist skinheads on the basis that this constituted ‘hate speech’.28 The organisation complained that the prosecution was inconsistent with its right to freedom of speech under ­Article 10 of the European Convention of Human Rights. The European Court of Human Rights here drew a distinction between the skinheads’ statements and their subsequent broadcast. In the assessment of the Court, punishing the media for reporting statements by others ‘would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged

26 Ambeyi Ligabo, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc A/HRC/4/27 (2 January 2007) paras 44–45. 27 ‘Charlie Hebdo: France Marks Five Years Since Paris Massacre’ BBC News (7 January 2020), available at www.bbc.com/news/world-europe-51018163. See further Neville Cox, ‘The Freedom to Publish “Irreligious” Cartoons’ (2016) 16 Human Rights Law Review 195. 28 Jersild v Denmark (1995) IHRL 2917 (ECHR 1994).

Incitement, Hate Speech and Propaganda  69 unless there are particularly strong reasons for doing so’.29 Despite the offensiveness of the statements, the Court considered that the Government’s reasons for prosecuting the journalist were insufficient, having regard to the need for the media to inform citizens about the threat of such views and the nature and scale of racism in Danish society.30 This said, there is clearly a fine line between responsible reporting and media coverage that magnifies the power and reach of hate speech.31 Currently this complex balancing act is also required in determining the scope of intermediary responsibility for hate speech. This issue arose for the first time in the European Court of Human Rights jurisprudence in the case of Delfi.32 The matter involved a large and established Estonian online news service which had in place a system whereby readers’ comments were published below news articles. An article was published and generated reader comments deemed to be hate speech. The comments were removed on request, but in response to the challenge brought by the news service the judgment held that there had been no violation of Article 10 involved in the domestic imposition of liability for those readers’ comments.33 The case generated a good deal of commentary and is regarded by some critics as imposing too high a burden upon freedom of expression and failing to distinguish between hate speech and defamatory content. Indeed, a subsequent case involving potentially defamatory comments rather than hate speech resulted in a contrasting finding that domestic court rulings establishing intermediary liability for website user comments did involve a violation of Article 10.34 There the balance involved greater emphasis upon questions of media freedom given the different context and the jurisprudence here continues to evolve. There are additional international sources of law regarding the prohibition of incitement, hate speech and propaganda. Of particular interest is the International Convention on the Elimination of All Forms of Racial Discrimination. This formed part of the international legal framework considered in the case of Jersild.35 Article 4 of the Convention is directed towards prohibition of discriminatory

29 ibid [35]. 30 ibid [37]. 31 Jan Oster argues that a key aspect of this case ‘was the Court’s observation that news reporting based on interviews constitutes one of the most important means whereby the media is able to play its vital role of “public watchdog”’. Oster, Media Freedom as a Fundamental Right (2015) 236. Note also the significant recent case Belkacem v Belgium (2017) ECHR 253. This case involved a conviction for incitement relating to hateful videos on YouTube targeting non-Muslims. The Court found there was no violation of freedom of expression involved. 32 Delfi AS v Estonia (2015) ECHR 586. 33 ibid [162], see also [157]. 34 Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v Hungary (2016) ECHR 135. See further regarding the implications of this developing jurisprudence in terms of monitoring unlawful content and the dilemmas associated with censorship and media freedom, Jacob Rowbottom, Media Law (Oxford, Hart Publishing, 2018) 348–51. 35 Jersild v Denmark (n 28) [30].

70  Endangered Publics propaganda and other forms of media-related incitement and violence.36 The Committee on the Elimination of Racial Discrimination offers further guidance noting that Article 4 is ‘mandatory’, that it has enabled the Committee to address ‘hate speech phenomena’ and that in addition it performs ‘an expressive function in underlining the international community’s abhorrence of racist hate speech’.37 The United Nations Declaration on the Rights of Indigenous Peoples also requires states to provide for prevention and redress of ‘Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against’ indigenous peoples and individuals.38 Beyond this, there exist provisions prohibiting hate speech and incitement in the Council of Europe’s Additional Protocol to its Convention on Cybercrime.39 The European Commission’s Audio Visual Media Services Directive is another framework which obliges national authorities to ensure that audio-visual media services do not contain ‘incitement to violence or hatred’ (based on grounds set out in Article 21 of the EU Charter of Fundamental Rights and Freedoms) or ‘public provocation to commit a terrorist offence’.40 These regional instruments deal with traditional and also digital media contexts for hate speech, and promote action at the national level.41 There have also been recent initiatives within the 36 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) Art 4. See also Art 5. Another example where such issues are directly connected with the mass media is United Nations Educational, Scientific and Cultural Organization, Declaration on Fundamental Principles Concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War, UNESCO General Conference, 20th sess (28 November 1978) (UNESCO, Mass Media Declaration) Arts 1 and 3. 37 Committee on the Elimination of Racial Discrimination, General Recommendation No 35: Combating Hate Speech, 83rd sess, UN Doc CERD/C/GC/35 (26 September 2013) paras 5 and 10. The Committee further states at para 45 that: ‘The relationship between proscription of racist hate speech and the flourishing of freedom of expression should be seen as complementary and not the expression of a zero sum game where the priority given to one necessitates the diminution of the other’. 38 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007) Art 8(e). 39 Council of Europe, Convention on Cybercrime, opened for signature 23 November 2001, ETS No 185 (entered into force 1 July 2004) and the Additional Protocol to the Convention on Cybercrime, Concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed through Computer Systems, opened for signature 28 January 2003, ETS No 189 (entered into force 1 March 2006). 40 Directive 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (­Audiovisual Media Services Directive) in view of changing market realities [2018] OJ L 303/69, Art 6, see also Arts 3 and 9. This essentially prohibits incitement to violence or hatred ‘based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’: Charter of Fundamental Rights of the European Union [2012] OJ C 326/391, Art 21. 41 See for example Council of Europe, Additional Protocol to the Convention on Cybercrime, Concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed through Computer Systems, opened for signature 28 January 2003, ETS No 189 (entered into force 1 March 2006) Art 6.

Incitement, Hate Speech and Propaganda  71 EU to engage digital media platforms in the governance of online hate.42 Despite this focus on regional and national governance, interest in the international framework and its interpretive guidance has grown alongside the digital transformation of the media.43 This can be explained simply by the virality of online hate speech and the failure of self-regulation measures conducted by digital media platforms as speech intermediaries.44 This has generated calls for reform and a renewed interest in the utility of universal guidance in the form of ‘rule of law’ and human rights standards. The current UN Special Rapporteur for Freedom of Expression, David Kaye, has highlighted the role to be played by such transnational media companies in governing online hate speech. Kaye notes that states should not use such companies as vehicles to censor speech.45 Instead he calls on states and companies to work together to better protect speech and to be guided by the established international human rights law framework.46 Drawing on the business and human rights framework, Kaye concludes that such ‘Companies have for too long avoided human rights law as a guide to their rules and rule-making, notwithstanding the extensive impacts they have on the human rights of their users and the public’.47 He suggests that these powerful companies engage in periodic human rights impact assessment, adopt content and removal policies that comply with international human rights law (and its emphasis on protecting speech), be attentive to context and nuance in their enforcement practices, involve affected communities and look to develop less speech-restrictive remedies.48 Such contemporary activity focused on the dangers of online hate, emphasises the role for the international human rights law framework in protecting endangered publics from incitement, propaganda and various forms of hate speech. In doing so it also illustrates the continuing tensions involved due to the dominance of freedom of expression within that framework and the difficulties associated with constraining private power, as explored in chapter two. A further framework of relevance here is that of international criminal law which has drawn upon 42 See for example the European Commission’s ‘Code of Conduct on Countering Illegal Hate Speech Online’ (May 2016), which has involved an expanding group of key digital media companies, available at ec.europa.eu/info/policies/justice-and-fundamental-rights/combatting-discrimination/raci sm-and-xenophobia/eu-code-conduct-countering-illegal-hate-speech-online_en. 43 There have also been path-breaking efforts in the traditionally speech-protective context of the US to address hate speech and reconcile its regulation with the First Amendment. See further: Danielle Keats Citron, Hate Crimes in Cyberspace (Cambridge, Harvard University Press, 2014); Jeremy Waldron, The Harm in Hate Speech (Cambridge, Harvard University Press, 2012). 44 See further: Kate Klonick, ‘The New Governors: The People, Rules, and Processes Governing Online Speech’ (2018) 131 Harvard Law Review 1598; Tarleton Gillespie, Custodians of the Internet: Platforms, Content Moderation, and the Hidden Decisions that Shape Social Media (New Haven, Yale University Press, 2018). 45 Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (n 3) paras 29, 33 and 57. 46 ibid para 56. 47 ibid para 58. 48 ibid.

72  Endangered Publics international human rights approaches for jurisprudential guidance in addressing extreme forms of media violence, including incitement to genocide.

II.  International Criminal Law In the context of a growing awareness in the modern era of the media’s connection to and incitement of crime and conflict, international legal scholars and tribunals had begun to address the question of how international law might play a part in restraining the negative potentials of the media.49 At the end of World War Two Hersch Lauterpacht was especially prominent in calling for the regulation of propaganda, sedition and hate speech, as part of the emergent framework for international human rights protection.50 Calls to create an international framework to address the harm of propaganda and hate speech connected also with efforts to prosecute Nazi war criminals. At Nuremberg, Julius Streicher was tried for his activities as publisher and editor of Der Stürmer, an anti-Semitic weekly newspaper which operated from 1923 to 1945.51 Streicher was the first media professional to be convicted of international crimes arising out of his media activities. The Nuremberg Tribunal found him guilty of crimes against humanity. In particular, he was held to have perpetrated crimes of incitement and persecution,52 linked to his role as author of published articles in which ‘the poison Streicher injected into the minds of thousands of Germans … caused them to follow the National Socialists policy of Jewish persecution and extermination’.53 The judgment refers to evidence before it of a wide range of articles where Streicher specifically called for the extermination of Jews. The Tribunal concludes that: Streicher’s incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with war crimes as defined by the Charter, and constitutes a crime against humanity.54 49 See for example the discussion of propaganda in Erik Castrén, The Present Law of War and Neutrality (Helsinki, Finnish Academy Annals, 1954) 208–10. See also Julius Stone, Legal Controls of International Conduct: A Treatise on the Dynamics of Disputes and War-Law (New York, Rinehart and Co, 1954) ch XI, Discourse 15, 318–23. See further for a limited view of state responsibility for offending media broadcasts, Hersch Lauterpacht, ‘Revolutionary Propaganda by Governments’ in International Law, Being the Collected Papers of Hersch Lauterpacht: The Law of Peace, Volume 3, Parts II–VI (Elihu Lauterpacht (ed), Cambridge, Cambridge University Press, 1977) ch 8, esp 293–95. 50 Hersch Lauterpacht, An International Bill of the Rights of Man (New York, Columbia University Press, 1945) 108. 51 Streicher Judgment (International Military Tribunal for the Trial of German Major War Criminals, 1 October 1946), available at avalon.law.yale.edu/imt/judstrei.asp. 52 The Charter of the International Military Tribunal: Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 82 UNTS 279 (entered into force 8 August 1945) Art 6. 53 Streicher Judgment (n 51). 54 ibid. Note the reference in Art 6 of the Charter of the International Military Tribunal to ‘persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal’ as forming a part of the definition of crimes against humanity.

International Criminal Law  73 These post-World War Two efforts to punish incitement became stalled in the Cold War period, which was characterised not by international efforts to co-ordinate peaceful broadcasting or to criminalise propaganda, but rather by public diplomacy on either side of the divide.55 As with efforts to achieve consensus on the further development of international criminal law or to transcend the polarised characterisation of international human rights as either civil and political rights or economic, social and cultural rights, efforts to develop further an international law of the media were inhibited by ideological divisions. Free speech and ‘private media’ came to be associated with the West, ‘state directed media’ with the East.56 With the rise of the South in the 1970s, these issues were revisited, and they have returned once again in the aftermath of the Cold War and with the advent of the internet and globalised digital media, and in the context of the revival of international criminal justice. The case of Julius Streicher mentioned above prefigured recent jurisprudence concerning the media in the context of international criminal law.57 The International Criminal Tribunal for Rwanda (ICTR), in particular, has considered the role of the media as a propagandist for and participant in genocide, and this has resulted in the conviction of a Belgian journalist58 and most prominently in the Media Genocide case59 where for the first time since Streicher’s conviction by the Nuremberg Tribunal media executives were found guilty of international crimes. Two of the three accused in the Media Genocide case, Nahimana and Barayagwiza, had key roles in the founding of the radio station Radio Télévision Libre des Mille Collines (RTLM). The third, Ngeze, was editor of the newspaper Kangura. All were linked to radical Hutu politics and two had connections to the Coalition to Defend the Republic (CDR) party. The evidence pointed to a concerted effort on their part to marshal the media in efforts to stigmatise not only the Rwandan Patriotic Front (RPF) but all Tutsis as the ‘enemies’ of Hutus. Tutsi women were especially targeted, and this set the 55 These earlier efforts include: the Convention on the International Right of Correction, signed 31 March 1953, 435 UNTS 191 (entered into force 24 August 1962); and League of Nations, International Convention Concerning the Use of Broadcasting in the Cause of Peace, signed 23 September 1936, 186 LNTS 301 (entered into force 2 April 1938). For coverage of post-war debates over how to ensure freedom of information and/or regulate international propaganda, debates which saw East and West divided along Cold War lines, see John B Whitton, ‘The United Nations Conference on Freedom of Information and the Movement Against International Propaganda’ (1949) 43 American Journal of International Law 73. 56 Wolfgang Friedmann, The Changing Structure of International Law (London, Stevens and Sons, 1964) 273. See also BS Murty, Propaganda and World Public Order: The Legal Regulation of the Ideological Instrument of Coercion (New Haven, Yale University Press, 1968). 57 See further, Alex Obote Odora, ‘Criminal Responsibility of Journalists under International Criminal Law: The ICTR Experience’ (2004) 73 Nordic Journal of International Law 307. 58 Prosecutor v Ruggiu (Judgement and Sentence) (2000) 39 ILM 1338 (International Criminal Tribunal for Rwanda, Trial Chamber I). 59 Prosecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze (Judgement and Sentence) (2003) (International Criminal Tribunal for Rwanda, Trial Chamber 1, Case No ICTR-9952-T, 3 December 2003). For more extensive background to the media’s role in the Rwandan genocide than is possible here, see Allan Thompson (ed), The Media and the Rwandan Genocide (London, Pluto Press, 2007).

74  Endangered Publics scene for systematic rape during the genocide.60 Many of the editorials and broadcasts are shocking in their hateful and violent language. The clear message was that Tutsis would be massacred in retaliation for RPF attacks and in defence of the Hutu ‘majority’. In considering the impact of the newspaper Kangura on the population, the Chamber notes that only 30 per cent of the community were literate, but that material published in it spread orally and rapidly ‘Because Kangura was extremist in nature, everyone spoke of it, in buses and everywhere’.61 Various witnesses testified that it was an influential yet extremist paper, spreading hatred of Tutsis. Ngeze, as the editor and main force behind it, was characterised as a propagandist for the genocide. And yet, at the heart of this case is the power of radio, with RTLM ‘the ambient sound of the genocide’.62 Witnesses gave evidence of the centrality of radio in the Rwandan media scene and the various ways in which RTLM engaged in ‘ethnic stereotyping’ of Tutsi civilians.63 To determine the significance of the broadcasts and their reception by audiences, the ICTR again turned to witnesses who had listened to, and seen the consequences of, the broadcasts. The picture which emerges is of audiences ‘whipped … into a frenzy of hatred and violence’.64 In the words of one witness: ‘What RTLM did was almost to pour petrol – to spread petrol throughout the country little by little, so that one day it would be able to set fire to the whole country’.65 The radio station is figured as a catalyst, if not the sole cause, through its role in targeting individuals, co-ordinating information, and leading Tutsis to false ‘safe havens’ where they were rounded up and killed.66 In addressing the responsibility of the accused, the Tribunal made some general statements about the media. It began the section outlining its legal findings by declaring that: ‘The power of the media to create and destroy fundamental human values comes with great responsibility. Those who control such media are accountable for its consequences.’67 In their defence, the accused, and especially Ngeze, relied on the right to freedom of expression. Rejecting this claim, the Tribunal maintained that, while protection is given to expression which is critical, offensive and even shocking, it is not afforded to ‘hate speech and the glorification of violence’.68 The judgment concludes by asserting that ‘the power of the media to harm is increasingly acknowledged’.69 The radio is recognised as having 60 Though the Media Genocide case did not include charges reflecting responsibility for resulting crimes against women. See further Binaifer Nowrojee, ‘A Lost Opportunity for Justice: Why Did the ICTR Not Prosecute Gender Propaganda?’ in Thompson, Rwandan Genocide (ibid) 362–72. 61 Prosecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze (n 59) [235]. 62 Susan Marks and Andrew Clapham, International Human Rights Lexicon (Oxford, Oxford University Press, 2005) 245. 63 Prosecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze (n 59) [342]–[68]. 64 ibid [488]. 65 ibid [436]. 66 ibid [468]. 67 ibid [945]. 68 ibid [999]. 69 ibid [1079].

International Criminal Law  75 potential in this regard, given its ‘active’ and immediate nature, and its broad reach. Of Ngeze, the Chamber noted his position of influence in relation to public opinion and the way in which he might have used that to strengthen democracy but instead deployed the media to ‘attack and destroy human rights’.70 In this account, then, the media is characterised as a force for good, perverted to do evil in the case of Nahimana, Barayagwiza and Ngeze. For the Tribunal, words became weapons, ideas poison, and media executives genocidaires. Such characterisations of the media as a tool for incitement and perpetrator of international crime, illustrate a thematic approach which has resonated from Nuremberg through to Rwanda. We can see that in constructing this narrative the Tribunal underplays the agency of audiences involved in the genocide. Indeed James Parker has offered a powerful critique of the Tribunal’s analysis and the way in which its emotive characterisation of media power perpetuates stereotypes about Africans in terms of manipulability, while instrumentalising the radio in order to strengthen weaknesses in legal arguments regarding incitement and causation.71 The Rwandan Media Genocide case was appealed, and the defendants raised free speech as a defence, as they had earlier done in their trials.72 In addition to arguments relating to the independence of the tribunal, their rights as accused persons, and allegations of abuse of process, their central claim was that what the ICTR Chamber saw as an international crime was in fact political speech which, however objectionable, should be protected. Looking back even to Nuremberg, the prosecution of Streicher, though ground-breaking and precedent setting, was controversial for some involved. The American prosecutor Telford Taylor was troubled by aspects of the prosecution and felt that: ‘publication of a newspaper, however maddening and unconscionable it may be, should be touched with criminal accusations only with the greatest caution’.73 This tension between addressing the media’s responsibility for international crimes and the free publics conception of media freedom’s centrality endures to the present day. The appeal judgment is lengthy and remains controversial.74 Richard Wilson writes that some problems in the trial judgment were rectified, but that ‘it glossed over others and left room for future misinterpretation’.75 He points to underlying confusion and error in the ICTR’s jurisprudence requiring the inchoate 70 ibid [1101]. 71 James EK Parker, Acoustic Jurisprudence: Listening to the Trial of Simon Bikindi (Oxford, Oxford University Press, 2015) esp 165–75. 72 For the criticisms of the Trial Chamber’s decision voiced by a defence lawyer for Nahimana see further Jean-Marie Biju-Duval, ‘“Hate Media” – Crimes Against Humanity and Genocide: Opportunities Missed by the International Criminal Tribunal for Rwanda’ in Thompson (ed), Rwandan Genocide (2007) 343–61. 73 Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (London, Bloomsbury, 1993) 590. 74 Richard Wilson, ‘Inciting Genocide With Words’ (2015) 36 Michigan Journal of International Law 277, 293–94; Catherine A MacKinnon, ‘Prosecutor v Nahimana, Barayagwiza, & Ngeze. Case No ICTR 99-52-A’ (2009) 103 American Journal of International Law 97. 75 Wilson, ‘Inciting Genocide With Words’ (ibid) 294.

76  Endangered Publics offence of direct and public incitement to commit genocide to be grounded in causal connection between speech acts and subsequent violence.76 A further area of controversy relates to temporality as the appeal judgment clarifies which of the charges remain valid in the light of a decision by the Appeals Chamber that crimes committed before 1994 should not have been considered, as the Tribunal’s jurisdiction did not extend before then.77 With regard to events after this date, the Appeals Chamber upheld the Trial Chamber’s findings in relation to RTLM’s broadcasts and their contribution to the commission of acts of genocide. On the other hand, it found that Kangura’s publications had to be seen in a somewhat different light. Nahimana and Barayagwiza were found not to have been sufficiently in control of RTLM broadcasts in the later period considered valid by the Appeals Chamber for their convictions for genocide (as individuals) to stand in relation to those broadcasts. Similar charges were reversed in relation to Ngeze’s activities at Kangura, though not in relation to his involvement with the roadblocks where victims were stopped and subsequently killed. In relation to charges of direct and public incitement to commit genocide, the Appeals Chamber found that only RTLM broadcasts after 6 April 1994 constituted direct and public incitement to genocide, with certain Kangura articles in 1994 found to directly and publicly incite the commission of genocide. The Appeals Chamber affirmed the conviction against Nahimana for direct and public incitement to genocide in relation to his superior responsibility for RTLM after 6 April 1994, though not for Barayagwiza, who was in effective control at RTLM only before 6 April 1994 where evidence was insufficient or jurisdiction limited. The Appeals Chamber further affirmed the individual criminal responsibility of Ngeze for direct and public incitement to genocide in relation to several articles he wrote himself in Kangura in 1994, and found that the Trial Chamber had not erred in attributing responsibility to him for Kangura articles and editorials during that time. In short, serious charges such as genocide, and conspiracy to commit genocide, were overturned for all the appellants, and Barayagwiza’s convictions in relation to his involvement with RTLM were overturned, leaving convictions not for his involvement with the media but rather his activities with the CDR. Whilst critical of specific findings of the Trial Chamber, and keen to give greater clarity to the legal framework, including recognition of a distinction between hate speech in general and direct incitement to commit genocide, the Appeals Chamber nevertheless upheld the broader analysis of media implication in genocide crucial to the case

76 ibid 285–99. 77 Ferdinand Nahimana, Jean-Bosco Barayagwiza, and Hassan Ngeze v The Prosecutor (Judgement) (2007) (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No. ICTR-99-52-A, 28 November 2007). (Note that this is a lengthy and confusing decision and the following analysis draws upon the Summary of Judgement in English). Wilson, ‘Inciting Genocide With Words’ (2015) 292. See also the criticisms in MacKinnon, ‘Prosecutor v Nahimana, Barayagwiza, & Ngeze’ (2009) 102.

International Criminal Law  77 and the resulting criminal regulation of the media. Their sentences were reduced only minimally given the seriousness of the remaining convictions affirmed by the Appeals Chamber. In the aftermath much attention has been given to the question of how sections of the Rwandan media could play such a role in the genocide and to the importance of media training and its role in conflict prevention. The case also marks an important step in understanding media power in more critical terms as potentially endangering publics as well as contributing to the conditions of their freedom. However, this has tested and stretched the capacity of international legal frameworks to both protect speech and prohibit incitement.78 The case also draws attention to the troubling fact that so much of the Western media failed to respond to the Rwandan genocide, mirroring the inaction of the UN and its Member States, and reminding us of the limits of media witnessing.79 The Media Genocide case in Rwanda remains a stark example of the extreme role which the media can play as a perpetrator of international crime. Subsequently, social media’s role in atrocity crimes has also become a significant concern. A chilling contemporary example is the use of Facebook as a tool for the organised persecution of the Muslim Rohingya community in Myanmar.80 In Myanmar, as elsewhere, Facebook dominates internet-based communication. This allowed the military to use fake accounts to spread misinformation and propaganda about the Rohingya and to incite their persecution.81 While profiting from its dominant position in the Myanmar media market, Facebook failed to appropriately regulate the spread of online hate, all the while lobbying against external regulation of its activities. The company lacked the basic resources to monitor what was happening on its platform, such as having sufficient numbers of employees on the ground, or with relevant language skills and local political and cultural awareness. Until the scale of the problem became an international scandal, the company also appeared to lack the motivation to act or to accept responsibility.82 78 See further Wilson (n 74). 79 Noam Schimmel, ‘An Invisible Genocide: How the Western Media Failed to Report the 1994 Rwandan Genocide of the Tutsi and Why’ (2011) 15 The International Journal of Human Rights 1125. 80 Emma Irving, ‘Suppressing Atrocity Speech on Social Media’ (2019) 113 AJIL Unbound 256; Human Rights Council, Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar, 39th sess, UN Doc A/HRC/39/CRP.2 (10–28 September 2018). See further Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Request for the Indication of Provisional Measures – Order) (International Court of Justice, General List No 178, 23 January 2020) [53]–[56]. 81 Paul Mozur, ‘A Genocide Incited on Facebook, With Posts From Myanmar’s Military’ The New York Times (15 October 2018), available at www.nytimes.com/2018/10/15/technology/myanmarfacebook-genocide.html. 82 There are some indications this is changing. Facebook has now developed its community standards in relation to hate speech, which state ‘We do not allow hate speech on Facebook because it creates an environment of intimidation and exclusion, and in some cases, may promote real-world violence’. Facebook, ‘Community Standard 13. Hate Speech’, available at www.facebook.com/communitystandards/ hate_speech; Alexandra Stevenson, ‘Facebook Admits It Was Used to Incite Violence in Myanmar’ The New York Times (6 November 2018), available at www.nytimes.com/2018/11/06/technology/myanmarfacebook.html.

78  Endangered Publics David Kaye indicates that some responsibility for the viral spread of this hatred and its consequences must remain with Facebook: The consequences of ungoverned online hate can be tragic, as illuminated by Facebook’s failure to address incitement against the Rohingya Muslim community in Myanmar. Companies do not have the obligations of Governments, but their impact is of a sort that requires them to assess the same kind of questions about protecting their users’ right to freedom of expression.83

But even from this institutional human rights law perspective there remains caution regarding direct international regulation of social media platforms. This ambivalence regarding Facebook’s human rights responsibilities stems in part from the enduring dominance of speech rights, but also reflects the practical reality that the soft law business and human rights framework is reliant on corporate engagement. For too long social media companies have sought to deflect their own responsibilities as media while claiming First Amendment-style protections for speech. Now they are looking to minimise the damage to their reputations by engaging with the soft law language of business and human rights. Here human rights are pictured not as binding legal norms, but as available ingredients to enable corporate selfregulation and marketing. The failures of Facebook in Myanmar continue to generate pressure for platforms to begin to accept their role as publishers and face external regulation.84 Yet it is unlikely that international criminal law with its focus on individual responsibility can adequately address this form of corporate responsibility.85 It is necessary to keep in mind that traditional media has also played an important role in the persecution of the Rohingya. Indeed the case study illustrates the ways in which powerful state actors within Myanmar used both state media, such as the Global New Light of Myanmar newspaper, and also Facebook as a social media platform, to incite hatred for and human rights violations in relation to this community.86 83 Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (n 3) para 41. At para 25 Kaye also points to responsibilities for states under the Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) Art 3(c). 84 Facebook has recently indicated it will do more to address this problem of digital hate. See further: Alex Warofka, ‘An Independent Assessment of the Human Rights Impact of Facebook in Myanmar’ (5 ­November 2018), available at about.fb.com/news/2018/11/myanmar-hria/; Joshua Brustein, ‘Facebook’s First Human Rights Chief Confronts Its Past Sins’ Bloomberg (28 January 2020), available at www.bloom berg.com/news/articles/2020-01-28/facebook-s-first-human-rights-chief-seeks-to-tame-digital-hate. 85 Irving, ‘Suppressing Atrocity Speech on Social Media’ (2019) 257–58; Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) Art 25(1); but note the future plans to capture corporate criminal responsibility in the African regional context as outlined in the African Union’s Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (adopted 27 June 2014) (Malabo Protocol). See also Ingrid Burrington, ‘Could Facebook Be Tried for Human-Rights Abuses? The Legal Path is Murky.’ The Atlantic (20 December 2017), available at www.theatlantic.com/technology/archive/2017/12/ could-facebook-be-tried-for-war-crimes/548639. 86 Ronan Lee, ‘Extreme Speech in Myanmar: The Role of State Media in the Rohingya Forced ­Migration Crisis’ (2019) 13 International Journal of Communication 3203.

International Humanitarian Law  79 This reminds us that in considering media’s responsibility for violence we need to account for both public and private forms of power, traditional and digital forms of media. This continues as an important theme in chapter four to follow.

III.  International Humanitarian Law Let us now turn to international humanitarian law, which grapples with the topic of media and violence in the specific context of armed conflict. Under international humanitarian law, as under international human rights law, the media is treated in the first place as something to be protected. Such protection is offered due to its watchdog function which can see the media play a role in the gathering of evidence for international crimes and also in drawing attention to the norms of international humanitarian law.87 Journalists are essentially classified in either of two categories: as war correspondents when formally attached to the military; or as civilians. War correspondents are required to be treated upon capture as ‘prisoners of war’, and afforded the protections enumerated for such prisoners in the Third Geneva Convention.88 As for journalists who are not formally attached to the military, the First Protocol to the Geneva Conventions (Protection of Victims of International Armed Conflicts) of 1977 specifically includes the media in its schema for protection of civilians, as outlined in Chapter Two and especially Article 50 of the Protocol. This is re-emphasised in Chapter Three of the Protocol, which includes measures for the protection of journalists, and states that appropriately identified journalists must be treated as civilians, ‘provided that they take no action adversely affecting their status as civilians’.89 This imposes upon journalists an obligation to identify themselves clearly as media professionals. Given contemporary conditions of warfare, the dangers posed to journalists relate increasingly to non-observance of these protections offered them as civilians. Except for the practice of ‘embedding’ in the Iraq War, there has been a trend away from journalists attaching themselves formally to the military and towards their adopting a civilian status.90 This trend converges with heightened concern about the protection of civilians in armed conflict. Whilst not all states are parties to the First Protocol, the treaty has been considered by some to reflect custom recognising the special role of journalists in armed

87 Freya Foster, ‘The Price of News From the Front Line: Rethinking the Protection of Media Personnel under International Humanitarian Law’ (2015) 20 Journal of Conflict & Security Law 451, 455–56. 88 See Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), adopted on 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) Art 4A(4). 89 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts) (Protocol I), adopted on 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) Art 79. 90 Foster, ‘The Price of News From the Front Line’ (2015) 457–60. See also Nina Burri, Bravery or Bravado? The Protection of News Providers in Armed Conflict (Leiden, Brill Nijhoff, 2015).

80  Endangered Publics conflict and the need to protect the media from being targeted by the ­belligerent parties. According to the International Committee of the Red Cross, there is today a rule of customary international law to the effect that: ‘Civilian journalists engaged in professional missions in areas of armed conflict must be respected and protected as long as they are not taking a direct part in hostilities’.91 The Red Cross has pointed to consistent state and institutional practice asserting the need and duty to protect civilian journalists in armed conflict.92 In a similar vein, the UN Security Council has condemned attacks upon journalists in conflict situations.93 Kayt Davies and Emily Crawford suggest that international humanitarian law ‘extends considerable legal protections to embedded and nonembedded journalists in both internal and international armed conflicts. However, the current law does not create a special status for journalists’.94 Nina Burri writes that ‘The number of journalists killed in conflict zones is … higher than ever. The former heroic witnesses of war have become victims of their own story’.95 Given the heightened danger faced by media personnel some call for the elaboration of a new legal instrument to specifically address the situation of the media in armed conflict.96 One example is the campaign for a press emblem to better distinguish and protect media in conflict. But this proposal is questioned by some journalists who are concerned that such a symbol may in fact assist the targeting of media.97 A further limitation is that international humanitarian law applies only to armed conflict, and many recent initiatives concerning the safety of journalists are consequently framed in more general  terms.98 This  connects

91 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules (Cambridge, Cambridge University Press, 2005) Rule 34, ch 10, 115. 92 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume II: Practice (Part 1) (Cambridge, Cambridge University Press, 2005) ch 10. Note also that this practice is now updated at the ICRC, Customary IHL Database, available at ihl-databases.icrc.org/ customary-ihl/eng/docs/v2_rul_rule34. 93 SC Res 1738, UN Doc S/RES/1738 (23 December 2006); SC Res 2222, UN Doc S/RES/2222 (27 May 2015). 94 Kayt Davies and Emily Crawford, ‘Legal Avenues for Ending Impunity for the Death of Journalists in Conflict Zones: Current and Proposed International Agreements’ (2013) 7 International Journal of Communication 2157, 2165. 95 Burri, Bravery or Bravado? (2015) 1. See further: Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion (n 26) paras 58–63; Committee to Protect Journalists: www.cpj.org. 96 See Alexandre Balguy-Gallois, ‘Protection des Journalistes et des Médias en Période de Conflit Armé’ (2004) 86 International Review of the Red Cross 37, 37. See also the UN General Assembly’s resolutions in the 1970s and subsequent UN practice on this issue and the general need for protection of the media in conflict, Henckaerts and Doswald-Beck, Customary International Humanitarian Law, Volume II: Practice (Part 1) (2005) ch 10, esp 664–65. See also: Foster (n 87) 452; Davies and Crawford, ‘Legal Avenues’ (2013). 97 Press Emblem Campaign: www.pressemblem.ch; Emily Crawford and Kayt Davies, ‘The International Protection of Journalists in Times of Armed Conflict: The Campaign for a Press Emblem’ (2014) 32 Wisconsin International Law Journal 1; Foster (n 87) 473–75. 98 See further Jeannine E Relly and Celeste González de Bustamante, ‘Global Violence Against Journalists’ in Howard Tumber and Silvio Waisbord (eds), The Routledge Companion to Media and Human Rights (Abingdon, Routledge, 2017).

International Humanitarian Law  81 international humanitarian law with the protection for media freedom in international human rights law terms and also can extend to the right to life.99 There are a range of soft law resolutions of interest here with the issue engaging the UN General Assembly, UN Human Rights Council and forming a component of work undertaken by the United Nations Educational, Scientific and Cultural Organization (UNESCO), which oversees initiatives such as World Press Freedom Day and the UN Plan of Action on the Safety of Journalists and the Issue of Impunity.100 These connections with international human rights law extend to the need to further address the contrasting ‘attack dog’ potential of the media in armed conflict. The characterisation of the media as a watchdog to be protected by international humanitarian law operates in tension with regulation of the media as an instrument for propaganda for war. For example, under international humanitarian law the use of the media to degrade those captured is prohibited.101 It is also prohibited to parade prisoners of war on television and to publish humiliating images of injured and captured military personnel.102 Such humiliating and degrading treatment of prisoners of war may constitute a war crime under the Rome Statute.103 During the Iraq War the broadcast of degrading images of ‘coalition’ forces on the Al Jazeera television network caused considerable controversy.104 Another dimension here is the targeting of the media and

99 Christof Heyns and Sharath Srinivasan, ‘Protecting the Right to Life of Journalists: The Need for a Higher Level of Engagement’ (2013) 35 Human Rights Quarterly 304. See also earlier discussion regarding media freedom and the targeting of journalists in ch 2, this volume. 100 See for example: UNESCO, International Programme for the Development of Communication, UN Plan of Action on the Safety of Journalists and the Issue of Impunity, UN Doc CI-12/CONF.202/6 (12 April 2012); The Safety of Journalists and the Issue of Impunity, UN GA Res 74/157 (18 December 2019); UN Human Rights Council, The Safety of Journalists, UN Doc A/HRC/RES/39/6 (27 September 2018). A range of these soft law instruments can be found at: UNESCO, ‘Basic Texts Related to the Safety of Journalists’, available at en.unesco.org/themes/safety-journalists/basic-texts. The International Federation of Journalists has also been involved in proposing a draft International Convention on the Safety and Independence of Journalists and Other Media Professionals (19 March 2018), available at www.ifj.org/media-centre/reports/detail/international-convention-on-the-safety-and-independenceof-journalists-and-other-media-professionals/category/human-rights.html. 101 See Art 3(1)(c) in both the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), adopted on 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) and the Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), adopted on 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) which refer to the prohibition of ‘outrages upon personal dignity, in particular humiliating and degrading treatment’. Article 13 of the Third Geneva Convention provides that ‘prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity’. See further Phillippe Sands, Lawless World: America and the Making and Breaking of Global Rules (London, Penguin Books, 2006) 148. 102 See for instance UK Ministry of Defence, The Joint Service Manual of the Law of Armed Conflict (2004) para 8.29, 155. 103 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) Art 8(2)(b)(xxi). 104 For a critical analysis of this episode see further Frédéric Mégret and Frederick Pinto, ‘“Prisoners’ Dilemmas”: The Potemkin Villages of International Law?’ (2003) 16 Leiden Journal of International Law 467.

82  Endangered Publics accompanying arguments that doing so may be legitimate. A notable earlier example of such assaults on the media in wartime was the targeting by NATO forces of a Serbian state-owned radio and television station (RTS) in Belgrade in April 1999. Four years later, the ‘coalition of the willing’ attacked the ‘main television station’ in Baghdad and in Basra, during the Iraq War.105 Al Jazeera’s Baghdad operations were also bombed. And Iraq-based Reuters journalists were arrested and held without charge at Abu Ghraib.106 This latter event brings into focus the status of local journalists or ‘fixers’ used by foreign correspondents. Such people are notoriously vulnerable, and are frequently denied protection by intervening or occupying forces, despite their significance and status. The Syrian conflict has further illustrated the role of citizen media and freelance reporting, reminding us of the dangers for those involved who work without the institutional support of larger media organisations and the training provided in relation to both conflict and international humanitarian law.107 According to some, media infrastructure may lawfully be targeted, especially where the infrastructure is controlled by a belligerent state and is being used for military or propaganda purposes.108 However, claims that the targeting by NATO of the RTS station was legitimate on the ground of its co-ordinating military use and propaganda function remain contested. The legitimacy of such an attack also depends on a balancing exercise between military necessity and humanitarian constraints.109 A review by the International Criminal Tribunal for the Former Yugoslavia (ICTY) of the NATO bombing of the RTS station found that: [I]f the attack on the RTS was justified by reference to its propaganda purpose alone, its legality might well be questioned … It appears, however, that NATO’s targeting of the RTS building for propaganda purposes was an incidental (albeit complementary) aim of its primary goal of disabling the Serbian military command and control system.110

On the basis of this analysis, the ICTY’s Office of the Prosecutor decided not to proceed with an investigation into the bombing.111 Proceedings were, however,

105 APV Rogers, Law on the Battlefield, 2nd edn (Manchester, Manchester University Press, 2004) 82–83. For the ICTY investigation into the attack on the Serbian television station see Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (2000) 39 ILM 1257 (International Criminal Tribunal for the Former Yugoslavia). 106 Claire Cozens, ‘Reuters Journalists Freed in Iraq’ The Guardian (17 January 2006), available at www.theguardian.com/media/2006/jan/16/reuters.iraqandthemedia. 107 Frontline Freelance is an important initiative here: www.frontlinefreelance.org. 108 Castrén, War and Neutrality (1954) 200. 109 Rogers, Law on the Battlefield (2004) 17, 83. See also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted on 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) Arts 48 and 52(2). See also SC Res 2222, UN Doc S/RES/2222 (27 May 2015) especially paras 1–10. 110 Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (2000) 39 ILM 1257 (International Criminal Tribunal for the Former Yugoslavia) para 76, 1278–79. 111 ibid para 79, 1280.

Information Intervention, Cybersecurity and Computational Propaganda  83 initiated by the victims’ families in the European Court of Human Rights, with the aim of demonstrating that the attack on the RTS building violated obligations owed by the NATO states under European human rights law. The claim failed: the applicants were unsuccessful in establishing the extra-territorial responsibility of the states concerned for acts occurring in Belgrade.112 Today the media continue to be directly targeted in wars, with Syria providing a tragic contemporary example of continuing disregard for international humanitarian protections.113 Indeed the Syrian conflict illustrates the co-existence of mediatization of violence and targeting of the media with violence.114 Digital witnessing methods have been violently subverted by terrorist organisations as a technique to pressure opponents, to attempt to chill coverage of conflict, to incite violence and to generate propaganda. In extreme cases this has resulted in the gruesome broadcast murders of kidnapped journalists.115 This intersection between media, technology and violence points further to longstanding debates regarding information intervention and also the contemporary problems associated with cybersecurity and computational propaganda.

IV.  Information Intervention, Cybersecurity and Computational Propaganda Information intervention has a history which goes back at least as far as the start of the twentieth century.116 Baty writes of the early development of notions of neutrality in war zones, and also of the ways in which efforts were made by conflicting parties as far back as the Russo-Japanese War of 1904–05 to seize ‘vessels carrying correspondents of the Press’ and to treat the correspondents as ‘spies’ given their use of wireless telegraphy.117 The question of media regulation in times of conflict revolved around the potential for censorship of the press during wartime. This points not only to issues concerning state censorship and national security already touched upon, but also to the image of the media and its affiliation with national

112 Banković and Others v Belgium and 16 Other Contracting States (Admissibility) (2001) ECHR 890. 113 Prominent examples here are the murders of Marie Colvin and Remi Ochlik in Syria in 2012: ‘Celebrated Correspondent Killed in Homs Barrage’ ABC News (23 February 2012), available at www. abc.net.au/news/2012-02-22/western-journalists-killed-in-syria-conflict/3846146; ‘Marie Colvin: Syrian Government Found Liable for US Reporter’s Death’ BBC News (31 January 2019), available at www.bbc.com/news/world-us-canada-47082088. 114 Elizabeth Dickinson, ‘Syria’s Media War’ Columbia Journalism Review (24 November 2015), ­available at www.cjr.org/analysis/syria_media_war.php. 115 Daniel Pearl and James Foley are two tragic examples of journalists targeted in this way by terrorist organisations. See further Robert G Picard and Hannah Storm, The Kidnapping of Journalists: Reporting from High-Risk Conflict Zones (London, IB Tauris, 2016). 116 John Westlake, International Law, Part II: War, 2 edn (Cambridge, Cambridge University Press, 1913) 253–54. 117 T Baty, The Canons of International Law (London, John Murray, 1930) 447–49.

84  Endangered Publics communities. Patriotism defined early efforts at war coverage, and it is still a problem in the media coverage of conflict. At the same time, the history of efforts to control the media during wartime reveals state concern with media power and indeed the use of media technology as a form of warfare. Concern over the use of radio in the Spanish Civil War and in connection with the rise of fascism in Europe meant that this remained an issue for discussion in the League of Nations era and at the time when the United Nations system was created. The UN Charter explicitly contemplates the possibility that Chapter VII action by the UN Security Council will involve information intervention.118 The measures permitted to be used ‘include complete or partial interruption of … postal, telegraphic, radio, and other means of communication’.119 Jennings and Watts recognised the subject of radio communications as one falling squarely within traditional international law concerns, and allude to several questions regarding state sovereignty and the legality of jamming radio signals: The principle of exclusive sovereignty in the airspace for the subjacent state, which has received general approval in connection with aerial navigation, raises the question how far the state may legally object to, and even jam, radio broadcasts into the airspace over its territory emanating from a foreign source? More importantly there is the question how a technology of great social and political importance to all states, and which now involves both airspace and outer space, can best be ordered internationally?120

These were questions that had been raised during the Cold War and its competition for public diplomacy.121 The West claimed the right to broadcast into the East, and the East claimed the right to jam those signals, asserting that this was necessary to redress the invasion of state sovereignty. In more recent times, these questions have resurfaced, but with a focus not so much on whether Western states should broadcast, as on whether in some circumstances they should jam – the tables have been turned. Thus, for example, there was a vigorous debate in the Clinton administration over whether the US authorities should jam the Rwandan radio; ultimately, for a mix of technical and mainly free speech-related reasons, this was not done. While some analysts maintain that jamming is inconsistent with international law, others consider it internationally lawful and insist that it should be an option in future situations.122 Jamie Metzl indeed suggested at the time that the UN should itself establish an ‘information intervention unit’.123 It is

118 Charter of the United Nations (1945) Arts 39 and 41. 119 ibid Art 41. 120 Robert Jennings and Arthur Watts (eds), Oppenheim’s International Law: Volume I, 9th edn (Oxford, Oxford University Press, 2008) 659–60. 121 Richard A Falk, ‘On Regulating International Propaganda: A Plea for Moderate Aims’ (1966) 31 Law & Contemporary Problems 622. 122 Samantha Power, ‘A Problem from Hell’: America and the Age of Genocide (New York, Basic Books, 2002) 370–73. 123 Jamie F Metzl, ‘Information Intervention: When Switching Channels Isn’t Enough’ (1997) 76 Foreign Affairs 15, esp 17–19.

Information Intervention, Cybersecurity and Computational Propaganda  85 interesting to note though that in the latest revision of the International Telecommunication Union (ITU) Constitution, Article 45 (prohibiting radio interference by another state) is limited to ‘harmful interference’, apparently leaving open the possibility of ‘humanitarian’ or genocide-preventing interference.124 The issue of information intervention becomes amplified when the internet and digital media are taken into account. Institutional concerns about the use of the internet for terrorist purposes can be traced back to the early period of the ‘War on Terror’. Initially, in resolution 1617 (2005) the UN Security Council expressed ‘its concern over the use of various media, including the Internet, [by] Al-Qaida, Usama bin Laden, and the Taliban, and their associates, including for terrorist propaganda and inciting terrorist violence’.125 And in resolution 1624 adopted later in the same year, the Council stressed the importance of the role of the media, civil and religious society, the business community and educational institutions in those efforts to enhance dialogue and broaden understanding, and in promoting tolerance and coexistence, and in fostering an environment which is not conducive to incitement of terrorism.126

This has remained an important theme in subsequent Security Council resolutions, which have considered the relationship between terrorism and information and communications technologies, terrorism and the internet and the importance of using all media to counter terrorist narratives.127 The UN General Assembly has also been active in the area of cybersecurity, and in response a Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security was established (UN GGE process).128 That body has reported regularly on the challenge posed to international peace and security by information and communication technologies (ICTs).129 Anders Henriksen notes that since the late 1990s ‘the so-called “UN GGE process” has been the primary avenue for interstate dialogue about the international legal regulation of cyberspace’, but argues that more

124 Constitution of the International Telecommunication Union, as adopted by the 2018 Plenipotentiary Conference, Art 45. 125 SC Res 1617, UN Doc S/RES/1617 (29 July 2005). 126 SC Res 1624, UN Doc S/RES/1624 (14 September 2005). 127 See for example: SC Res 2129, UN Doc S/RES/2129 (17 December 2013); SC Res 2170, UN Doc S/RES/2170 (15 August 2014); SC Res 2178, UN Doc S/RES/2178 (24 September 2014); SC Res 2354, UN Doc S/RES/2354 (24 May 2017); Statement by the President of the Security Council, S/PRST/2016/6, 11 May 2016. See further, Letter Dated 26 April 2017 from the Chair of the Security Council Committee Established Pursuant to Resolution 1373 (2001) Concerning Counter-Terrorism Addressed to the President of the Security Council, UN Doc S/2017/375 (28 April 2017). 128 GA Res 66/24, 66th sess, Agenda Item 93, UN Doc A/RES/66/24 (13 December 2011) para 4. 129 See for example, Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, GA Res 68/98, 68th sess, Agenda Item 94, UN Doc A/68/98 (24 June 2013). See also GA Res 70/237, 70th sess, Agenda Item 92, UN Doc A/RES/70/237 (23 December 2015) paras 1–3.

86  Endangered Publics recently the UN GGE process reached a political stalemate in 2017.130 Henriksen argues that the 2017 ‘collapse of the UN GGE is therefore also a clear indication that we are unlikely to witness the emergence of a single legal regime for the regulation of ICT in the foreseeable future’.131 The UN GGE process does in fact continue in some form with the establishment of a new group of experts in 2019, but it is clear that states have disengaged from formal international law-making in this arena in recent years.132 At the same time there has been a turn to more informal processes of international law-making such as the Tallinn Manual.133 As with the various challenges facing international law, it is likely that there will be further regional and bilateral activity to achieve progress where multilateral political agreement is unable to be obtained. Similarly, the difficulty associated with the definition of terrorism has meant that there is no overarching international instrument dealing with terrorism. However, the Council of Europe’s Convention on the Prevention of Terrorism was the first international instrument directly addressed to terrorism to criminalise provocation and incitement.134 This framework could apply to terrorist uses of the internet, and may be replicated in a future comprehensive convention on terrorism.135 The Council of Europe’s Convention on Cybercrime, adds a further layer to internet regulation, and does so from a criminal law, rather than market- or infrastructure-driven, perspective.136 It has attracted a broad range of signatories beyond its member states including Australia, Chile, Ghana, Sri Lanka and the US. Cybersecurity concerns, including those associated with terrorism, cybercrime, surveillance, data protection and child protection, act as increasingly influential limits to the idea of internet freedom. In the context of events such as the live streaming of the Christchurch massacre in 2019 the responsibility of

130 Anders Henriksen, ‘The End of the Road for the UN GGE Process: The Future Regulation of Cyberspace’ (2019) 5 Journal of Cybersecurity 1, 1. 131 ibid 8. 132 Kubo Mačák, ‘From Cyber Norms to Cyber Rules: Re-Engaging States as Law-Makers’ (2017) 30 Leiden Journal of International Law 877. Advancing Responsible State Behaviour in Cyberspace in the Context of International Security, GA Res 73/266, 73rd sess, Agenda Item 96, UN Doc A/RES/73/266 (22 December 2018). 133 Michael N Schmitt (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations: Prepared by the International Groups of Experts at the Invitation of the NATO Cooperative Cyber Defence Centre of Excellence (New York, Cambridge University Press, 2017). 134 Convention on the Prevention of Terrorism, opened for signature 16 May 2005, CETS No 196 (entered into force 1 July 2007) Art 5. See also Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism, opened for signature 22 October 2015, CETS No 217 (entered into force 1 October 2018). 135 See further Ezekiel Rediker, ‘The Incitement of Terrorism on the Internet: Legal Standards, ­Enforcement, and the Role of the European Union’ (2015) 36 Michigan Journal of International Law 321. 136 See for example Convention on Cybercrime, opened for signature 23 November 2001, ETS No 185 (entered into force 1 July 2004) as amended by Additional Protocol to the Convention on Cybercrime, Concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed through Computer Systems, opened for signature 28 January 2003, ETS No 189 (entered into force 1 March 2006).

Information Intervention, Cybersecurity and Computational Propaganda  87 platforms is receiving renewed regulatory attention.137 This will continue as an important theme for chapter four. A final area to note which connects with the subject matter of the next chapter, is the danger posed by computational propaganda. Propaganda is now often data-driven and digital, taking the form of misinformation and disinformation. Techniques can involve the harvesting of data, the targeting of algorithms, and the generation of fake accounts and bots. This threatens to undermine politics, including notably through interference in democratic elections, and has drawn attention to the vulnerability of social media such as Facebook, Twitter and Weibo to such manipulation.138 Samuel Woolley and Philip Howard helpfully define computational propaganda as ‘a communicative practice … [involving] the use of algorithms, automation, and human curation to purposefully manage and distribute misleading information over social media networks’.139 Computational propaganda is a problem for both democracies and authoritarian political systems, and it requires technological and social solutions.140 A range of contemporary case studies including the United States, Russia and the United Kingdom point to the challenge it poses to political systems and trust in them.141 These and other examples evidence a need for social media companies to be involved in the response to computational propaganda and to do more than they have to date to take responsibility for the damage they have enabled. Here we can note that there are efforts in the international human rights context to highlight the problem of fake news and the manipulation of information.142

137 See the New Zealand and French initiative, ‘The Christchurch Call’, responding to the C ­ hristchurch massacre and the use of platforms to incite and livestream terror and hate: www.christchurchcall.com. 138 See further Dannagal Young and Shannon McGregor, ‘Mass Propaganda Used To Be Difficult, But Facebook Made It Easy’ The Washington Post (14 February 2020), available at www.washingtonpost.com/outlook/2020/02/14/mass-propaganda-used-be-difficult-facebook-made-it-easy; Anthony Nadler, Matthew Crain, and Joan Donovan, ‘Weaponizing the Digital Influence Machine: The Political Perils of Online Ad Tech’ (Data & Society Research Institute, 2018), available at datasociety.net/ wp-content/uploads/2018/10/DS_Digital_Influence_Machine.pdf. 139 Samuel C Woolley and Philip N Howard, ‘Introduction: Computational Propaganda Worldwide’ in Samuel C Woolley and Philip N Howard (eds), Computational Propaganda: Political Parties, Politicians and Political Manipulation on Social Media (New York, Oxford University Press, 2019) 4. 140 ibid 5, 14. 141 See further for a range of case studies: Woolley and Howard (eds), Computational Propaganda (2019). See also: House of Commons, Digital, Culture, Media and Sport Committee, ‘Disinformation and “Fake News”’ (Final Report, HC 1791, 18 February 2019); Alice Marwick and Rebecca Lewis, ‘Media Manipulation and Disinformation Online’ (New York, Data & Society Research Institute, 2017). Although propaganda and information control are a central feature of digital media and the internet in China, Gillian Bolsover and Philip Howard’s study of the Chinese context does not emphasise the use of computational propaganda as yet on Weibo: Gillian Bolsover and Philip Howard, ‘Chinese Computational Propaganda: Automation, Algorithms and the Manipulation of Information About Chinese Politics on Twitter and Weibo’ (2018) 22 Information, Communication & Society 2063. 142 An example is the Organization for Security and Co-operation in Europe, Joint Declaration on Freedom of Expression and ‘Fake News’, Disinformation and Propaganda, FOM.GAL.3/17 (3 March 2017). There are also a range of EU initiatives here, see further: European Commission, ‘Tackling Online Disinformation’: ec.europa.eu/digital-single-market/en/tackling-online-disinformation.

88  Endangered Publics International law will play an important role here, but for it to do so will involve challenging the current status quo as regards the absence of global governance of digital media companies. Woolley and Howard conclude that computational propaganda endangers democracy and the very model of informed publics. It is true, as they suggest, that: ‘Platforms need to significantly redesign themselves if democracy is going to survive social media. Moreover, they cannot rely upon tired defences about being technology not media companies’.143 I argue that this insight requires us to reassess the collective failure to regulate digital media when publics are endangered.

V. Summary In this chapter I have considered international criminal law and international humanitarian law as further arenas of international regulation of the media, which in part draw on, but also stand in contrast to the freedom of expression that structures media protection in the international human rights framework. I have examined the history of efforts to address hate speech within human rights law and to criminalise incitement by the media, including the prosecution at the ICTR of three media executives for their role in the Rwandan genocide and more recent developments involving Facebook in Myanmar. I have also outlined the relevance of international humanitarian law for media activities in armed conflict. Overall, what emerges is a doubled-sided approach, according to which the media is protected in its watchdog role, while also being constrained and disciplined with respect to its alternative, ‘attack dog’ potential. At times this dual focus operates in conflict where the value of media freedom is placed in direct conflict with the prohibition on propaganda and incitement. This is reflected in international human rights law and international humanitarian law where the media are considered in both protective and punitive modes. Another theme which has emerged in both this and the previous chapter is the pressure placed upon existing international law frameworks by the transition to a digital media context. This necessitates further consideration of the imbrication of media and international law in the context of digital publics – the subject of chapter four to follow. Have the existing frameworks engaged sufficiently with the responsibility of corporate actors and private power? Do they underplay the agency of informed publics? Is there a need for further global governance in this area which as we have seen to date is marked as much by absence and anxiety as it is by direct public international regulation? My focus here has primarily been on the prohibitive dimensions of media regulation. This aspect of the international law of the media carries forward concern 143 Samuel C Woolley and Philip N Howard, ‘Conclusion: Political Parties, Politicians, and Computational Propaganda’ in Woolley and Howard (n 139) 244.

Summary  89 with the necessary limits of freedom of expression, and flows from increasing realisation of the media’s role in violence and suffering. In part, this also reflects the late twentieth century turn to a model of criminalisation in the enforcement of human rights, as illustrated by the proliferation of international criminal courts and tribunals. While these are significant developments, clearly more needs to be done to address the structural realities of violence and inequality. In this chapter we have confronted the complexity of media’s relationship to both law and violence. In the endangered publics conception which emerges from the intersecting and varied frameworks considered, there is both conflict and continuity with the free publics vision of chapter two. What connects both free and endangered publics is in fact the underlying value of informed publics. Informed publics are challenged by the failure of digital media platforms to assume responsibility for their informational infrastructure, but also by the continuing effort to co-opt international legal frameworks within a broader ideology of platform capitalism. It is to these vexed questions that we now turn in considering more fully the fate of digital publics and the ways in which international media law remains implicated.

4 Digital Publics Digital media companies are increasingly powerful non-state actors. To date these companies have largely resisted international regulation and disclaimed public forms of responsibility. Typically they maintain that they are not publishers in the traditional media law sense, and hence should not be liable for the content they enable. Their significance in terms of information networks and transnational communications infrastructure is only now beginning to capture regulatory attention in the context of the Edward Snowden revelations about mass global surveillance, the Cambridge Analytica scandal and continuing examples where digital media platforms have enabled computational propaganda and acts of violence.1 As will be examined in chapter five, up until these events digital media’s role had generally been perceived as beneficial and critical to a revival of the public sphere, enabling greater participation and enhancing transnational activism for human rights and political change. This optimistic account was leveraged by ­Silicon Valley companies to argue against regulation both to maintain US economic dominance in the digital economy and also because the internet and its platforms were imagined as performing the ideological work of liberal internationalism, opening markets and minds. In chapters two and three I considered some more familiar areas of international media law by reference to international human rights law, international trade law, international criminal law and international humanitarian law. In examining both dominant and less developed forms of international legal influence over the media, a broader, binary image emerged of free and endangered publics 1 Alan Rusbridger, ‘Absolute Power: Alan Rusbridger on the Disputed Heroism of Edward Snowden’ Times Literary Supplement (22 October 2019), available at www.the-tls.co.uk/articles/public/ edward-snowden-alan-rusbridger-whitleblowing; Nikhil Kalyanpur and Abraham Newman, ‘Today, a new EU law transforms privacy rights for everyone. Without Edward Snowden, it might never have happened.’ The Washington Post (25 May 2018), available at www.washingtonpost.com/news/ monkey-cage/wp/2018/05/25/today-a-new-eu-law-transforms-privacy-rights-for-everyone-withoutedward-snowden-it-might-never-have-happened; Issie Lapowsky, ‘How Cambridge Analytica Sparked the Great Privacy Awakening’ Wired (17 March 2019), available at www.wired.com/story/cambridgeanalytica-facebook-privacy-awakening; Nicholas Thompson and Fred Vogelstein, ‘15 Months of Fresh Hell Inside Facebook’ Wired (16 April 2019), available at www.wired.com/story/facebook-markzuckerberg-15-months-of-fresh-hell; Nicolas Suzor, Molly Dragiewicz, Bridget Harris, Rosalie Gillett, Jean Burgess and Tess Van Geelen, ‘Human Rights by Design: The Responsibilities of Social Media Platforms to Address Gender-Based Violence Online’ (2019) 11 Policy & Internet 84.

Telecommunications  91 which international law’s engagement with media sustains. At times the media is positioned as performing a critical function in international society and thus is said to be deserving of special protection, but in other examples it is itself linked to violence and harm. In this chapter we turn to consider more fully how these patterns in international media law are adjusting to the digital media context and to examine the contemporary struggle over regulation of digital media. The chapter begins with telecommunications as an originary model, before examining debates over internet governance with a specific focus on the human rights framework and its translation to digital contexts. Having considered the resilience of human rights norms as regards digital media I turn also to examine calls for data governance. My intention is not to provide a detailed analysis of EU or other data protection laws, but rather to point to the potential transnational influence of such frameworks and simply to highlight the need for a more universal approach to data governance. There is a need to do more to regulate the informational power of platforms. To date digital media platforms have been allowed to largely self-regulate and their power is considerable. Calls for stronger forms of platform governance draw on human rights frameworks, but remain stuck with the difficulties involved in their application to private power. The story in this chapter remains then one of an absence of international law. In its place digital publics are promised a mix of self-regulation, market-driven innovation and techno-libertarianism. To begin to understand why, we need to consider earlier efforts to govern and order international communication in the telecommunications sector.

I. Telecommunications The oldest initiatives to regulate the media at the international level belong in the sphere of telecommunications. In the latter part of the nineteenth century international law sought to co-ordinate forms of communication which had by then become transnational in reach. The International Telegraphic Convention in 1864 marked a turning point in the use of international treaties to co-ordinate and organise international affairs.2 The emergent system of modern international law came in part to be structured, as Pearce Higgins put it, through ‘the great net-work of treaties on such subjects as arbitration, copyright, patents, money, railways, posts and telegraphs, which increased facility of communication and the growth of international trade have called into being’.3 Telecommunications regulation crosses over several areas of international law and has developed ‘a detailed

2 See Wolfgang Friedmann’s discussion of Manley Hudson’s view in this regard in Wolfgang ­Friedmann, The Changing Structure of International Law (London, Stevens and Sons, 1962) 124, fn 14. 3 A Pearce Higgins, The Binding Force of International Law (Cambridge, Cambridge University Press, 1910) 25.

92  Digital Publics and even elaborate system of conventions, treaties and international organization’.4 The regulation of telecommunications has also involved unexpected areas of international law such as the law of the sea in relation to the prevention of pirate broadcasts which were a problem for some countries in an earlier era of state broadcasting monopolies and limited spectrum.5 The International Telecommunication Union (ITU), based in Geneva, is the UN specialised agency given a co-ordinating role as regards the international regulation of telecommunications. The ITU traces its origins back to the International Telegraph Union established by the International Telegraphic Convention mentioned above. The basic framework for the ITU itself can be found in its Constitution and the ITU Convention created in Geneva in 1992 and revised by subsequent plenipotentiary conferences.6 The ITU is involved in a range of activities relevant to the media and international law. In particular, it focuses on three core areas: radio communication; standardisation; and development. This emphasis on development has also led the ITU to engage with an array of international initiatives, from the Millennium Development Goals through to the World Summit on the Information Society (WSIS). In the process, the ITU has raised its profile, and taken on a broader role than its traditional work in achieving agreement on the technical standards necessary for international communications.7 The tag line of the organisation is ‘committed to connecting the world’. Connection then becomes a powerful metaphor for ordering and governance. The ITU also continues in its long-standing activities, among them the management of radiofrequency spectrum and of satellite orbits, and the organisation of world radio communication conferences.8 Traditionally, the telecommunications industry has been less heavily regulated than the broadcasting sector.9 The ITU oversees the standardisation of telecommunications regulations and the creation of normative recommendations.10 Here the involvement of the private sector is a controversial 4 Robert Jennings and Arthur Watts (eds), Oppenheim’s International Law: Volume I, 9th edn (Oxford, Oxford University Press, 2008) 660. 5 Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 1 November 1994) (UNCLOS) Art 109. 6 See Constitution of the International Telecommunication Union, as adopted by the 2018 Plenipotentiary Conference (1992) Art 1, for a long list of ‘purposes’. The preamble to the Constitution emphasises the role of telecommunications in peace and social and economic development and also recognises ‘the sovereign right of each State to regulate its telecommunication’: www.itu.int/en/history/ Pages/ConstitutionAndConvention.aspx. 7 See for example, the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations, opened for signature 18 June 1998, 2296 UNTS 5 (entered into force 8 January 2005). 8 See further: International Telecommunication Union, ‘ITU Radiocommunication Sector’, available at www.itu.int/ITU-R/index.asp?category=information&link=rhome&lang=en. 9 While television broadcasting has traditionally been closely controlled, telecommunications have been managed largely through licensing and self-regulation. But convergence (exemplified by the internet delivery of audio-visual content) challenges the underlying regulatory distinction here between message and means. 10 See for example the International Telecommunications Regulations which have excited ongoing controversy in terms of their revision and applicability to the internet and the ITU-T recommendations: www.itu.int/en/ITU-T/publications/Pages/recs.aspx.

Internet Governance  93 dimension to the work of the ITU, with some arguing that the agency has over time been captured by the interests of large telecommunications companies. International regulation of satellites remains fragmentary, with organisations such as the ITU providing some elements towards a regulatory framework through control of satellite competition and orbital slots.11 The UN has not been able, despite efforts in the 1970s and 1980s in particular, to establish a centralised multilateral regulator for satellites. Instead, an array of regional and bilateral agreements have been concluded, dealing with the various state and private partnerships that are involved in putting satellites into space. In many ways the significance of satellite broadcasting for international media law has now been eclipsed by the internet as a site for digital media.12 Braithwaite and Drahos comment that the ITU, ‘once the global sovereign of telecommunications standard-setting, finds itself competing with regional-standard setting bodies, business consortia and individual companies. It desperately seeks to reorganize itself in its new environment’.13 The ITU has attempted to do so in a variety of arenas, but one key area of attempted expansion, unsurprisingly, has been internet governance.14

II.  Internet Governance The internet has transformed the media and our practices of communicating, and is closely associated with processes of globalisation.15 The internet evolved in collaborations between governments, the military and academic institutions. The historical development of the internet can be seen in some sense as a product of both the Cold War and 1960s counterculture, with the Pentagon and John Perry

11 International ‘space law’ is also of potential relevance to the regulation of satellites. There are a number of relevant international treaties, see especially Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty) GA RES 2222(XXI) opened for signature 27 January 1967 (entered into force 10 October 1967); and Convention on Registration of Objects Launched into Outer Space (The Registration Convention) GA RES 3235(XXIX) opened for signature 12 November 1974 (entered into force 15 September 1976). The UN General Assembly has also passed several resolutions of relevance here, among them the Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, GA RES 37/92 (10 December 1982). 12 Before the widespread availability of televisual media content online, concerns regarding unlawful transnational broadcasting focused on legal and policy solutions in terms of satellites. Now such issues are framed in terms of internet and digital media governance. See for example, the controversy regarding satellite television station Al-Manar: Christopher C Harmon and Randall G Bowdish, The Terrorist Argument: Modern Advocacy and Propaganda (Washington DC, Brookings Institution Press, 2018) 104–07. 13 John Braithwaite and Peter Drahos, Global Business Regulation (Cambridge, Cambridge University Press, 2000) 23. 14 See International Telecommunication Union, ‘Internet Policy and Governance’, available at www. itu.int/en/action/internet/Pages/default.aspx. 15 Manuel Castells, The Internet Galaxy: Reflections on the Internet, Business, and Society (Oxford, Oxford University Press, 2001) 1–3.

94  Digital Publics Barlow of the Grateful Dead both behind its philosophy and architecture.16 As John Naughton observes ‘it has no central authority’.17 The internet promised openness and end-to-end connectivity, and initially seemed to guarantee anonymity. To date, the internet has been allowed to develop largely without the direct intervention of international law institutions, though there are a range of public and private actors involved in its governance.18 It is highly significant that there is no universal international law framework for the regulation of the internet, as compared to, say, the law of the sea. This has left a partial patchwork of both public and private regulatory paradigms, and a general culture of distaste for state intervention. Contemporary concerns about a range of online harms facilitated by the internet have more recently called into question the practicability of selfregulation to protect the presumptive freedom, innovation and global commons of the web.19 And powerful states, such as China and Russia, have become increasingly adept at controlling and censoring the internet, with some states such as Iran going so far as to ‘switch it off ’ momentarily to contain domestic criticism and opposition.20 In China a combination of state and non-state actors are implicated in one of the most sophisticated online censorship regimes. The rise of China’s internet giants and their success beyond China’s territory also raises the possibility of the transnational reach of such censorship.21 In the beginning there was an emphasis on free publics in the structuring of the internet; this pendulum has now swung to focus on endangered publics, involving deeper consideration of collective interests. What is needed is a converged and coherent framework which captures the good and bad of digital media developments, but remains responsive to the normative demands of informed publics.22 16 John Perry Barlow, ‘A Declaration of the Independence of Cyberspace’ (Electronic Frontier Foundation, 8 February 1996), available at homes.eff.org/~barlow/Declaration-Final.html. See further John Naughton, A Brief History of the Future: The Origins of the Internet (London, Phoenix, 2000). 17 Naughton (ibid) 43. Note here recent scholarship which aims to extend the traditional US-focus of internet histories: Gerard Goggin and Mark McLelland, ‘Introduction: Global Coordinates of Internet Histories’ in Gerard Goggin and Mark McLelland (eds), The Routledge Companion to Global Internet Histories (New York, Routledge, 2017) 1–19. 18 For an interesting analysis of internet governance through the lens of ‘peer governance’ see Alex Mills, ‘Variable Geometry, Peer Governance, and the Public International Perspective on Private International Law’ in Horatia Muir Watt and Diego P Fernández Arroyo (eds), Private International Law and Global Governance (Oxford, Oxford University Press, 2014). 19 See for example the pioneering work of Danielle Keats Citron on hate crimes: Danielle Keats Citron, Hate Crimes in Cyberspace (Cambridge, Harvard University Press, 2016). 20 Josephine Wolff, ‘How Iran Turned Off the Internet’ The Wire (30 November 2019), available at thewire.in/tech/how-iran-turned-off-the-internet; Laura DeNardis, ‘Hidden Levers of Internet Control’ (2012) 15 Information, Communication & Society 720, 729–31. 21 A disturbing contemporary example involves the Chinese platform TikTok, which has been accused of broadly censoring content which is politically sensitive for China and also of being implicated with other Chinese digital media companies in human rights abuses in Xinjiang: Anna Fifield, ‘TikTok’s Owner is Helping China’s Campaign of Repression in Xinjiang, Report Finds’ Sydney Morning Herald (29 November 2019), available at www.smh.com.au/world/asia/tiktok-s-owner-is-helping-china-scampaign-of-repression-in-xinjiang-report-finds-20191129-p53fcs.html. 22 Laura DeNardis, along with many others, has argued that ‘More law is not necessarily the answer’ and that efforts should be directed to ‘safeguarding the technological architecture necessary

Internet Governance  95 To achieve this at the international level remains a significant political challenge, but there are a range of existing normative principles and modes of governance to be taken into account, including those drawn from human rights, as examined below.23 In addition, the materiality of internet governance needs to be better appreciated. The internet is governed in large part by its infrastructure.24 For example, data cables materially support the internet and provide critical global infrastructure for all manner of communications, but are often privately owned, vulnerable to interference and unequally distributed across the world.25 This unequal pattern of distribution and access reflects a legacy of the original cable system’s ‘imperial economic logic’.26 Stephen Humphreys reflects that ‘The cable map is like the negative skeleton of global sovereign power: private bones for public flesh’.27 The internet is driven also by technical protocols such as TCP/IP, which connect devices horizontally, and by search engines and platforms, which define the parameters of the digital environment as a whole.28 There is a preference for self-regulation in the form of the technical standards and norms which have emerged within the internet community. One important example is the principle of network neutrality, which calls for equality of access to relevant infrastructure.29 This principle

to preserve freedom’, but we should also ask who will do this safeguarding and for whom?: DeNardis, ‘Hidden Levers’ (2012) 735. 23 Rolf H Weber, ‘International Governance in a New Media Environment’ in Monroe E Price, Stefaan Verhulst and Libby Morgan (eds) Routledge Handbook of Media Law (Abingdon, Routledge, 2013) 361–72, 366. 24 Laura DeNardis reflects that: ‘Forces of globalization and technological change have diminished the capacity of sovereign nation states and media content producers to directly control information flows. This loss of control over content and the failure of laws and markets to regain this control have redirected political and economic battles into the realm of infrastructure and, in particular, technologies of Internet governance’: DeNardis (n 20) 721. 25 Stephen Humphreys, ‘Data: The Given’ in Jessie Hohmann and Daniel Joyce (eds), International Law’s Objects (Oxford, Oxford University Press, 2018) 199. Adam Satariano, ‘How the Internet Travels Across Oceans’ The New York Times (10 March 2019), available at www.nytimes.com/interactive/2019/03/10/technology/internet-cables-oceans.html; TeleGeography, ‘Submarine Cable Map’, available at www.submarinecablemap.com. DeNardis writes of the ‘ongoing privatization of Internet governance’: DeNardis (n 20) 734. This imbrication of global communications and capitalism has a history which stretches back to the nineteenth century: Simone M Müller and Heidi JS Tworek, ‘“The Telegraph and the Bank”: On the Interdependence of Global Communications and Capitalism, 1866–1914’ (2015) 10 Journal of Global History 259. 26 Müller and Tworek (ibid) 262. Müller and Tworek note (at 280) that despite the asymmetry of power involved, ‘Communications systems were both sites of imperial power and often violent contestation of that power’ with this remaining the case to the present day. 27 Humphreys, ‘Data’ (2018) 199. 28 DeNardis notes that ‘Internet protocols are the rules, or blueprints, that enable interoperability among technologies made by different manufacturers’: DeNardis (n 20) 723. DeNardis also points to the power of platforms here, arguing that ‘information intermediaries establish public policy about issues such as privacy and reputation, as well as deal with intellectual property enforcement and censorship requests’ (ibid). This power has led to calls for platforms to be subject to greater regulatory oversight. 29 Tim Wu, ‘Network Neutrality, Broadband Discrimination’ (2003) 2 Journal on Telecommunications and High Technology Law 141; De Nardis (n 20) 725.

96  Digital Publics is widely seen as antithetical to commercial visions of the internet as a user-pays ‘highway’, in which speed and manoeuvrability are enjoyed unequally. At the same time, commercial pressures have chipped away at the principle of network neutrality, with service providers now offering fast and slow lanes on the internet.30 Further areas of regulatory activity include the role of the non-profit Internet Corporation for Assigned Names and Numbers (ICANN) in determining domain names, internet addresses and protocols, the creation of ‘worldwide web’ technical standards, and the development of codes of conduct for service providers. Indeed, much of the earlier controversy over internet governance focused on the role that ICANN plays in acting as a centralised authority for domain names on the internet. ICANN was viewed as a vehicle for US control of the internet, in as much as it has sole authority to set policy regarding name-space online. The fear was that one national government holds the keys to a critical part of internet architecture, and hence has the potential to interfere with and control domain names or block particular sites. Concerns regarding US control intensified following the Snowden revelations of US mass surveillance. At this time, the ITU unsuccessfully attempted to place itself as an alternative site of authority to ICANN in 2012.31 Despite that failure, international pressure increased and the US relinquished formal control of ICANN to a multi-stakeholder governance model in 2016.32 There have also been various attempts to generate norms from international initiatives such as the WSIS. The WSIS met initially in Geneva in 2003 and then again in Tunis in 2005, and developed a range of soft law instruments concerning development, communication and most controversially, governance. The process was marked by active NGO and civil society participation and also a revival of UN involvement in these issues through the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the ITU, after the earlier disputes over multilateralism in debates in the 1970s and 1980s over the New World Information and Communication Order (NWICO).33 This push for multilateral control of the internet was largely resisted by the US cyberlaw community which maintained a steadfast libertarian critique of state intervention in the form of international law. For instance, in 2008 Jonathan Zittrain called for the protection of the ‘generative’ 30 David McCabe, ‘Court Upholds Net Neutrality Repeal, With Some Caveats’ The New York Times (1 October 2019), available at www.nytimes.com/2019/10/01/technology/net-neutrality-repeal-broad band.html. 31 David P Fidler, ‘Internet Governance and International Law: The Controversy Concerning Revision of the International Telecommunication Regulations’ (7 February 2013) 17 ASIL Insights, available at www.asil.org/insights/volume/17/issue/6/internet-governance-and-international-law-controversyconcerning-revision; ‘United States Rejects International Telecommunications Union Conference Outcome, Fearing Interference with Internet Freedom’ (2013) 107 American Journal of International Law 444. 32 Dave Lee, ‘Has the US Just Given Away the Internet?’ BBC News (1 October 2016), available at www. bbc.com/news/technology-37527719; Maria Farrell, ‘Quietly, Symbolically, US Control of the Internet was Just Ended’ The Guardian (14 March 2016), available at www.theguardian.com/technology/2016/ mar/14/icann-internet-control-domain-names-iana. 33 See for example World Summit on the Information Society, Resolution 73 of the Plenipotentiary Conference of the International Telecommunication Union (1998), available at www.itu.int/net/wsis/

Internet Governance  97 possibilities of the internet, emphasising that technologists and users rather than diplomats and regulators would provide the social solutions to cyberlaw problems. Zittrain characterised the WSIS and ­Internet Governance Forum (IGF) processes as involving: [A] kind of negotiated intellectual harmony among participants at a self-conscious summit – complex regimes to be mapped out in a dialogue taking place at an endlessly long table, with a role for all to play. Such dialogues end in either bland consensus pronouncements or in final documents that are agreed upon only because the range of participants has been narrowed.34

While international lawyers will recognise the appeal of such a critique, it merely replaces an international legal call to arms with a form of technological idealism, which has paved the way for what came next – digital media monopolies who were largely allowed to ‘move fast and break things’.35 Such a reductive view of the complexity of international legal processes risks underplaying the significance of the movement for communication rights and the application of a broader human rights approach to the internet. Despite its problems the WSIS was in its own way ‘generative’ – with its revival of Cold War discussions about whether there is or should be the ‘right to communicate’.36 The WSIS also emphasised the provocative idea that the internet might be reconceived in the context of a global ‘information society’ which usefully redirects internet regulation, from more technical questions of standards and architecture towards a broader and public sphere-oriented model of digital media regulation. Nevertheless, for critics such as the US Government and its tech companies, multilateral and public international regulation remains inappropriate to what they consider a space of entrepreneurial activity and development, driven by the market and technological innovation. The position of the US and many in the internet community has been that freedom of expression would suffer under multilateral governance, with the input of countries such as China, which favour internet censorship.37 This has also become a key site for tension between global

docs/background/resolutions/73.html; Daithí Mac Síthigh, ‘From Freedom of Speech to the Right to Communicate’ in Monroe E Price, Stefaan Verhulst and Libby Morgan (eds), Routledge Handbook of Media Law (Abingdon, Routledge, 2013) 184–85. 34 Jonathan Zittrain, The Future of the Internet: And How to Stop It (London, Allen Lane, 2008) 242. 35 See further Jonathan Taplin, Move Fast and Break Things (London, Macmillan, 2017). Jonathan Zittrain has moved on from his earlier position and now diagnoses a shift in digital governance debates from a rights-based approach to a ‘public health’ approach involving the need for collective action but also an ‘inclusive and deliberative, and where possible, federated’ approach: Jonathan Zittrain, ‘Three Eras of Digital Governance’ (23 September 2019) 9, available at papers.ssrn.com/sol3/papers. cfm?abstract_id=3458435. 36 Milton L Mueller, Brendan N Kuerbis and Christiane Pagé, ‘Democratising Global Communication? Global Civil Society and the Campaign for Communication Rights in the Information Society’ (2007) 1 International Journal of Communication 1. 37 See further Vint Cerf, Patrick Ryan and Max Senges, ‘Internet Governance Is Our Shared Responsibility’ (2014) 10 I/S: A Journal of Law and Policy for the Information Society 1. It is interesting to note that these authors were connected to Google at the time of this intervention.

98  Digital Publics powers such as the US, China, the EU and Russia in their efforts to stamp authority in the international sphere and to maximise domestic control over the flow of information.38 Ultimately a deal was reached postponing efforts to regulate the internet at the level of the UN, and generally preserving the status quo of selfregulation. As a part of the political compromise involved, the WSIS generated the IGF under the auspices of the UN, which confirmed a multi-stakeholder model in place of more rigid forms of multilateralism.39 Central to the multi-stakeholder model are a range of less visible communitybased organisations involved with internet governance behind the scenes. One such actor is the Internet Society (ISOC), a professional membership society which is the organisational home for the groups responsible for internet infrastructure standards, including the Internet Engineering Task Force (IETF) and the Internet Architecture Board (IAB).40 Another actor involved in developing web standards is the World Wide Web Consortium (W3C), which emphasises ‘participation, sharing knowledge, and thereby building trust on a global scale’.41 This community-driven approach parallels the self-regulatory emphasis and public/ private character of ICANN. ISOC’s mission is directed towards technical issues for the internet such as standards, architecture, education, development and networking. Of course, these processes are not without substantive consequences, and bodies like ISOC and IETF are also involved in normative standard-setting – emphasising self-regulation, free expression, open standards, non-discrimination, data protection and connectivity.42 ISOC describes this community and userfocused approach as an ecosystem which engages a range of technical, policy, civil society, organisational, commercial and state actors.43 Examples here include advocacy groups such as the Electronic Freedom Foundation (EFF), the Association for Progressive Communications (APC) and the World Wide Web Foundation, 38 See, for example, concerns in the US that the internet will divide geopolitically between US and Chinese spheres of influence, and that Russia plans to create its own domestic internet: The Editorial Board, ‘There May Soon Be Three Internets. America’s Won’t Necessarily Be the Best.’ The New York Times (15 O ­ ctober 2018), available at www.nytimes.com/2018/10/15/opinion/internet-google-chinabalkanization.html; Justin Sherman, ‘Russia and Iran Plan to Fundamentally Isolate the Internet’ Wired (6 June 2019), available at www.wired.com/story/russia-and-iran-plan-to-fundamentally-isolate-theinternet. 39 The IGF is a multi-stakeholder initiative to encourage annual deliberation regarding public policy concerning the internet: Internet Governance Forum, available at www.intgovforum.org/multilingual. See further Jeremy Malcolm, Multi-Stakeholder Governance and the Internet Governance Forum (Perth, Terminus Press, 2008). 40 See Internet Society, ‘Who Makes the Internet Work: The Internet Ecosystem’ (3 February 2014), available at www.internetsociety.org/internet/who-makes-it-work. 41 See W3C, ‘W3C Mission’, available at www.w3.org/Consortium/mission. See for example its role in the OpenStand initiative: OpenStand, ‘Infographic: The 5 Core Principles of OpenStand’, available at open-stand.org/infographic-the-5-core-principles-of-openstand. 42 See Internet Society, ‘Internet Society 2019 Action Plan’, available at www.internetsociety.org/ action-plan/2019; Internet Society, ‘Policy Framework for an Open and Trusted Internet’ (22 June 2016), available at www.internetsociety.org/resources/doc/2016/policy-framework-for-an-open-andtrusted-internet; Internet Society, ‘Our Mission’, available at www.internetsociety.org/mission. 43 For a visual representation see Internet Society, ‘The Internet Ecosystem’, available at www.internetsociety.org/wp-content/uploads/2017/09/factsheet_ecosystem.pdf.

A Human Rights Approach  99 professional bodies such as the Institute of Electrical and Electronics Engineers (IEEE) and industry initiatives such as the Global Network Initiative (GNI).44 Despite its failure in hard law terms, the WSIS process highlights the ongoing role of non-state actors as norm entrepreneurs and the continuing appeal of human rights approaches to the regulation of digital media.45 The role for human rights here needs, however, to be seen in the broader context of the power of private actors and their regulatory function. Indeed, Laura DeNardis has powerfully argued that ‘the use of technical infrastructure and the actions of private ordering are now the central injunctive forces determining the extent of free expression online’.46 Here we should ask what is lost when human rights become ‘public interest concerns’ or design values.47 Such developments occur alongside more traditional human rights approaches as reflected in debates over internet freedom and digital privacy.

III.  A Human Rights Approach Internet freedom has been an important theme for internet governance bringing continuity with the freedom of expression jurisprudence examined in chapter two.48 This can be seen in the UN Human Rights Committee’s General Comment  34, which recognises that freedom of expression protections in Article 19 of the ICCPR must extend to ‘internet-based modes of expression’.49 Indeed, the Human Rights Committee goes further to emphasise the communicative significance of the internet and digital forms of media, noting that: [D]evelopments in information and communication technologies, such as internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world. There is now a global network 44 See: Electronic Frontier Foundation: www.eff.org; Association for Progressive Communications: www.apc.org; World Wide Web Foundation: webfoundation.org; IEEE: Advancing Technology for Humanity: www.ieee.org; Global Network Initiative: globalnetworkinitiative.org. See also DeNardis (n 20) 723. 45 See for example, Association for Progressive Communications, ‘Charter of Internet Rights’ (2006), available at www.apc.org/en/pubs/about-apc/apc-internet-rights-charter. Tim Berners-Lee through the Web We Want initiative has recently advocated for a principles-based ‘Contract for the Web’, to ensure that the internet remains free and accessible: Ian Sample, ‘Tim Berners-Lee Launches Campaign to Save the Web From Abuse’ The Guardian (6 November 2018), available at www.theguardian.com/ technology/2018/nov/05/tim-berners-lee-launches-campaign-to-save-the-web-from-abuse; Contract for the Web: contractfortheweb.org. 46 DeNardis (n 20) 726. 47 ibid. 48 See the earlier ‘Declaration of Internet Freedom’ (2012) as discussed in Nancy Scola, ‘Defining the We in the Declaration of Internet Freedom’ The Atlantic (9 July 2012), available at www.theatlantic. com/technology/archive/2012/07/defining-the-we-in-the-declaration-of-internet-freedom/259485. 49 UN Human Rights Committee, General Comment 34 on Article 19 of the International Covenant on Civil and Political Rights: Freedoms of Opinion and Expression, 102nd sess, UN Doc CCPR/C/ GC/34 (11–29 July 2011) para 12. The United Nations Educational, Scientific and Cultural Organization (UNESCO) is also engaging with this issue in terms of its broader interest in media freedom and protections for journalism: UNESCO, ‘Freedom of Expression on the Internet’, available at en.unesco. org/themes/freedom-expression-internet.

100  Digital Publics for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries. States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto.50

When freedom of expression translates online, it carries with it the more general criticisms observed earlier in chapter two (state-centrism, individuation and problems in addressing private forms of power). There are additional challenges specific to the digital media environment, especially those involved with jurisdiction and responsibility. Nevertheless, freedom of expression remains a central regulatory concept with particular relevance for digital media. This also helps to explain why there is such reticence to regulate the internet in a stronger public form. Many within the internet community have feared that such regulation would suppress technological innovation and allow states with a tradition of authoritarianism to push for online censorship and control of the internet. But here we can see that ‘the internet community’ involves the same displacement of authority as ‘the international community’, allowing a small group of experts, domestic policymakers and entrepreneurs to argue for continuing US dominance of the tech industry. The market significance of such ‘freedom’ can be illustrated by the enormous power and wealth generated by the commodification of the internet and the continuing centrality of Silicon Valley to the global digital economy.51 Internet freedom means different things, but key concerns include: the development of a positive ‘right to access the internet’; the maintenance of the internet as a space free from censorship or state control and as a free market for digital trade and commerce; and the broader application of freedom of expression principles to the internet context.52 Internet freedom involves a practical rights claim, although it is yet to be formally recognised as a human right.53 Advocates for US control of the internet have also attempted to generalise their claims by reference to ‘internet freedom’. An example here is Hillary Clinton’s speech on internet freedom in 2010. In that speech as US Secretary of State, Clinton portrayed internet freedom as entailing ‘a single internet where all of humanity has equal access to knowledge and ideas’.54 Inspired by the emergence of the Arab Spring and the implication of digital communications in the associated protest movements, C ­ linton warned of a new digital Cold War in the form of ‘a new information curtain … descending

50 UN Human Rights Committee, General Comment 34 (ibid) para 15. 51 Levi Pulkinnen, ‘If Silicon Valley Were a Country, It Would Be Among the Richest on Earth’ The Guardian (1 May 2019), available at www.theguardian.com/technology/2019/apr/30/ silicon-valley-wealth-second-richest-country-world-earth. 52 For a fuller account see Daniel Joyce, ‘Internet Freedom and Human Rights’ (2015) 26 European Journal of International Law 493. 53 Stephen Tully, ‘A Human Right to Access the Internet? Problems and Prospects’ (2014) 14 Human Rights Law Review 175. 54 Hillary Rodham Clinton, ‘Remarks on Internet Freedom’ (US Department of State, 21 January 2010), available at 2009-2017.state.gov/secretary/20092013clinton/rm/2010/01/135519.htm.

A Human Rights Approach  101 across much of the world’.55 Responding to this threat would involve cybersecurity measures to protect ‘the global networked commons’, the application of Roosevelt’s four freedoms online, along with an additional ‘freedom to connect’.56 Clinton’s remarks were followed at the time by Frank La Rue, then UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. In a key report delivered in 2011, Special Rapporteur La Rue highlighted the significance of the internet to freedom of expression and human rights advocacy more broadly, which meant ‘facilitating access to the Internet for all individuals, with as little restriction to online content as possible, should be a priority for all States’.57 Access here was configured in terms of freedom from censorship and also the availability of infrastructure.58 La Rue advocated a free publics conception of internet governance, concluding that ‘there should be as little restriction as possible to the flow of information via the Internet, except in few, exceptional, and limited circumstances prescribed by international human rights law’.59 He expressed particular concern about blocking and filtering the internet, criminalising online speech and imposing liability on intermediaries such as platforms.60 Others have been more sceptical of the merits or longevity of internet freedom, tying its ascendance with the rise of liberal international sentiments following 1989. Evgeny Morozov has argued that ‘The idea that the Internet favors the oppressed rather than the oppressor is marred by … cyber-utopianism: a naïve belief in the emancipatory nature of online communication that rests on a stubborn refusal to acknowledge its downside’.61 More recently Jack Goldsmith, whose earlier scholarship on the internet and jurisdiction helped to puncture claims that the internet was a ‘borderless world’, has also been critical of what he regards as the failure of the internet freedom agenda.62 Goldsmith writes of the hypocrisy involved by the US in heralding internet freedom while it was conducting mass surveillance. Internet freedom on this account is a US domestic and foreign

55 ibid. 56 ibid. 57 Frank La Rue, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc A/HRC/17/27 (16 May 2011) para 2, see also paras 19–21. 58 ibid para 3. In terms of his conclusions regarding infrastructure see paras 85–88. 59 ibid para 67. 60 For these and other priorities see ibid paras 7–84. 61 Evgeny Morozov, The Net Delusion: How Not to Liberate the World (London, Allen Lane, 2011) xiii. At xvi Morozov continues, ‘Internet-centrists like to answer every question about democratic change by first reframing it in terms of the Internet rather than the context in which that change is going to occur. They are often completely oblivious to the highly political nature of technology, especially the Internet, and like to come up with strategies that assume the logic of the Internet’. 62 Jack Goldsmith, ‘The Failure of Internet Freedom’ (Knight First Amendment Institute: Columbia University, 13 June 2018), available at knightcolumbia.org/content/failure-internet-freedom. See also Jack Goldsmith and Tim Wu, Who Controls the Internet? Illusions of a Borderless World (New York, Oxford University Press, 2006).

102  Digital Publics policy involving non-regulation of internet commerce and arguments against censorship in the style of the US First Amendment.63 This has led to resentment elsewhere in the world, especially in the aftermath of the Snowden revelations, and also left the US domestic system lacking the regulation needed to counter the cybersecurity threats it faces.64 Goldsmith rejects the internet freedom agenda on the pragmatic basis that the US ‘has been unable to stymie China’s singular approach to mixing political control and commercial freedom on the internet’.65 For Goldsmith, internet freedom has fallen victim to authoritarian co-option of the internet and also the EU’s differentiated approach to the regulation of speech and privacy.66 The human rights approach to internet governance, exemplified by the debates over internet freedom and digital privacy, is also balanced by a number of specific areas of regulatory focus to do with cybersecurity, as examined in chapter three. Privacy has particular significance in the internet context and there are arguments for embedding privacy by design in relevant technologies.67 Where earlier human rights cases involving the media and privacy focused on intrusive reporting and photography, now data is critical to the functioning of the digital media ecosystem and information privacy has returned to the foreground. Also in play are longstanding concerns to protect the integrity of communications and to ensure that surveillance is lawful, proportionate and subject to oversight and scrutiny.68 The resurgence of interest in digital privacy protection can be linked clearly to several key events. Foremost here were the extraordinary revelations of US whistleblower Edward Snowden, which revealed the mass surveillance undertaken by the US and key allies with the assistance of Silicon Valley companies. This caused a major embarrassment for both the US and for many of its leading tech companies, some of whom, such as Apple, have subsequently attempted to distance themselves from the state and promised greater protection for privacy. The Snowden scandal also led to efforts within the UN General Assembly to better articulate ‘the right

63 Goldsmith, ‘The Failure of Internet Freedom’ (ibid) 2. 64 ibid 4, 8, 14. 65 ibid 10. 66 ibid 11–13. 67 Fleur Johns and Daniel Joyce, ‘Beyond Privacy. Is Prevailing Legal Debate Too Analog for a Digital Age?’ (2014) 23 Human Rights Defender 24; Daniel Joyce, ‘Privacy in the Digital Era: Human Rights Online?’ (2015) 16 Melbourne Journal of International Law 270; Woodrow Hartzog, Privacy’s Blueprint: The Battle to Control the Design of New Technologies (Cambridge, Harvard University Press, 2018); Adamantia Rachovitsa, ‘Engineering and Lawyering Privacy by Design: Understanding Online Privacy both as a Technical and an International Human Rights Issue’ (2016) 24 International Journal of Law and Information Technology 374. 68 UN Human Rights Committee, General Comment No 16 on Article 17 of the International Covenant on Civil and Political Rights: The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 32nd sess, UN Doc GRI/GEN/Rev.9 (08 April 1988) para 8.

A Human Rights Approach  103 to privacy in the digital age’. There have been continuing UN General Assembly resolutions regarding this issue beginning with resolution 68/167 in 2013 which expressed deep concern at: [T]he negative impact that surveillance and/or interception of communications, including extraterritorial surveillance and/or interception of communications, as well as the collection of personal data, in particular when carried out on a mass scale, may have on the exercise and enjoyment of human rights.69

As a response the resolution affirmed ‘that the same rights that people have offline must also be protected online, including the right to privacy’.70 A potential answer to the problem of mass surveillance was said to be found in pre-existing protections for privacy, which needed to be translated to match digital contexts. Subsequently this has remained an important area for UN activity, generating reports and further resolutions.71 The process has also led to the creation of a special procedure relating to privacy.72 There remain both political and doctrinal challenges involved in better protecting digital privacy, including the issue of the extra-territorial application of human rights and also the need to better articulate ‘collective privacy’ given the social impact of new technologies.73 There have been parallel efforts within the European human rights jurisprudence to address the issue of mass surveillance in the context of Article 8 of the European Convention on Human Rights (ECHR).74 Orla Lynskey observes that the Article 8 ECHR jurisprudence regarding privacy has itself addressed many of the issues associated with data protection, and notes

69 The Right to Privacy in the Digital Age, GA RES 68/167, UN Doc A/RES/68/167 (adopted 18 December 2013). 70 ibid para 3. 71 See for example: Report of the Office of the United Nations High Commissioner for Human Rights, ‘The Right to Privacy in the Digital Age’, 27th sess, UN Doc A/HRC/27/37 (30 June 2014); The Right to Privacy in the Digital Age, GA RES 71/199, UN Doc A/RES/71/199 (adopted 19 December 2016); The Right to Privacy in the Digital Age, GA RES 73/179, UN Doc A/RES/73/179 (adopted 17 December 2018), available at www.ohchr.org/en/issues/digitalage/pages/digitalageindex.aspx. 72 See Joseph A Cannataci, Report of the Special Rapporteur on the Right to Privacy, UN Doc A/HRC/ 31/64 (8 March 2016). 73 These doctrinal issues are addressed in Marko Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2015) 56 Harvard International Law Journal 81; Report of the Special Rapporteur on the Right to Privacy (ibid) para 28. 74 European Convention on Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (ECHR), as amended by Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 13 May 2004, CETS No 194 (entered into force 1 June 2010) Art 8. See for example: Roman Zakharov v Russia (2015) ECHR 1065; Big Brother Watch and Others v The United Kingdom (2018) ECHR 299. These cases are focused on Art 8 (and Art 10) of the ECHR, but draw on a range of sources including EU cases, law and directives and the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data, opened for signature 28 January 1981, CETS No 108 (entered into force 1 October 1985), as amended by the Additional Protocol to the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data, Regarding Supervisory Authorities and Transborder Data Flows, opened for signature 8 November 2011, ETS No 181 (entered into force 1 July 2004).

104  Digital Publics the ‘considerable, and growing, overlap in terms of the substantive protection offered to individuals by the EU right to data protection and the ECHR’s right to privacy’.75 As discussed below this has also generated regional litigation relating to EU data protection, along with moves more broadly to reconsider the power of platforms and the costs of deregulation.76 Data governance, especially in the form of data protection laws, represents an important avenue for the protection of digital publics and their rights.

IV.  Data Governance Data protection has arisen in the context of digital technologies which allow for the gathering and storage of personal information. These developments have engaged (and challenged) traditional concerns with the confidentiality of communications and personal or otherwise sensitive information.77 As Humphreys notes, data needs to be conceived as a ‘thing’ and as a ‘medium’; ‘Data are “media” in the way a sememe is, but not in the way a newspaper is. This combination of infrastructural ubiquity and semantic fungibility give a world awash in data the attributes of a kind of immersive ocean’.78 The conceptual shift from media to data is significant and needs further consideration from a media law perspective.79 Key challenges here are how to effectively co-ordinate digital media regulation and how best to allocate authority and liability in shifting transnational settings.80 For example, Orla Lynskey points to the problem of data power with ‘the concentration of large volumes of data of different varieties in the hands of private economic entities’ as requiring a regulatory response.81 Data protection and platform governance 75 Orla Lynskey, ‘Deconstructing Data Protection: The ‘Added-Value’ of a Right to Data Protection in the EU Legal Order’ (2014) 63 International and Comparative Law Quarterly 569, 586. 76 See for example Digital Rights Ireland and Others (European Court of Justice, Joined Cases C-293/12 and C-594/12, ECLI:EU:C:2014:238, 8 April 2014). 77 General Comment No 16 (n 68) para 10. 78 Humphreys (n 25) 191. 79 There is a developing scholarship here which examines law’s entanglement with informational capitalism: Julie E Cohen, Between Truth and Power: The Legal Constructions of Informational Capitalism (Oxford, Oxford University Press, 2019). See also the attempt to view ‘law as information’ in the context of data’s reconfiguration of ‘law’: Mireille Hildebrandt, ‘Law as Information in the Era of Data-Driven Agency’ (2016) 79 Modern Law Review 1. More specifically David Erdos is usefully investigating the interaction between data protection laws and the media, including overlap and an often inconsistent relationship with media law in other guises: David Erdos, ‘Data Protection and the Right to Reputation: Filling the “Gaps” After the Defamation Act 2013’ (2014) 73 Cambridge Law Journal 536; David Erdos, ‘European Union Data Protection Law and Media Expression: Fundamentally Off Balance’ (2016) 65 International and Comparative Law Quarterly 139; David Erdos, ‘Statutory Regulation of Professional Journalism under European Data Protection: Down But Not Out?’ (2016) 8 Journal of Media Law 229. 80 See for example the efforts of the European Court of Human Rights to address this in the context of hate speech: Delfi AS v Estonia (2015) ECHR 586. 81 Orla Lynskey, ‘Grappling with “Data Power”: Normative Nudges from Data Protection and Privacy’ (2019) 20 Theoretical Inquiries in Law 189, 212. Lynskey writes that ‘we might think of the power exercised by technology companies as a form of media power’. She also notes that platforms have

Data Governance  105 offer potential avenues for reform here. For instance, there are examples in the EU context of data protection already supplementing traditional frameworks for media law.82 Data governance is also critical to the development of future areas of global governance such as a digital trade system.83 In domestic contexts there is talk of breaking up the monopoly power of transnational digital media corporations such as Facebook, but domestic responses require international co-ordination to effectively address the problem of transnational monopoly, and as we have seen earlier in chapter two, this form of regulation is absent at the international level. The broader issue of systemic coherence, which is a problem for traditional media law as it straddles public and private law models and attempts to balance competing human rights, intensifies in the context of digital publics where the regulatory landscape is fragmented and even more disparate. To date, international media law frameworks have not been developed to adequately address the problem of data power for digital publics. But the EU data protection model is an important regional exemplar and has controversially generated extraterritorial influence and application.84 The framework clearly draws upon and incorporates human rights considerations, especially from privacy law, and there is also a familiar human rights commitment to the recognition of the ‘data subject’. It operates in concert with the EU Charter of Fundamental Rights great ‘market power’, but suggests that we need to consider and regulate their ‘data power’. For Lynskey ‘Data power is a multifaceted form of power available to digital platforms, arising from their control over data flows’: 192–98, 220. 82 See, for example, the relevance of data (and data protection in certain contexts) to defamation law: Daniel Joyce, ‘Data Associations and the Protection of Reputation Online in Australia’ (2017) 4 Big Data & Society 1; Erdos, ‘Data Protection and the Right to Reputation’ (2014); David Erdos, European Data Protection Regulation, Journalism, and Traditional Publishers: Balancing on a Tightrope? (Oxford, Oxford University Press, 2019). 83 See further Joshua P Meltzer, ‘Governing Digital Trade’ (2019) 18(S1) World Trade Review s23. 84 I do not intend here to focus in depth on the EU framework and its associated jurisprudence. For a detailed analysis of the earlier European Data Protection Directive 95/46/EC of 24 October 1995, see Orla Lynskey, The Foundations of EU Data Protection Law (Oxford, Oxford University Press, 2016). That original framework has now been repealed and replaced by Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation) [2016] OJ L 119/1 (GDPR). Another model is the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data opened for signature 28 January 1981, CETS No 108 (entered into force 1 October 1985), as amended by the Additional Protocol to the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data, Regarding Supervisory Authorities and Transborder Data Flows, opened for signature 8 November 2011, ETS No 181 (entered into force 1 July 2004) (Convention 108). Convention 108 was the first binding international treaty addressing data protection and has been recently modernised by an amending Protocol (CETS No 223). Note too that California has recently updated its own privacy law with the introduction of the California Consumer Privacy Act of 2018 which will effect Silicon Valley and consequently many of its major companies: Editorial Board, ‘California’s Privacy Law Was Supposed to Spur Congress to Act. It Flubbed Instead.’ The Washington Post (8 January 2020), available at www.washingtonpost.com/opinions/californiasprivacy-law-was-supposed-to-spur-congress-to-act-it-flubbed-instead/2020/01/07/26088850-30c811ea-a053-dc6d944ba776_story.html.

106  Digital Publics and Freedoms.85 And although the European Court of Justice (CJEU) often ‘conflates the two rights’, data protection is conceptually ‘distinct’ from privacy in some important respects.86 One key point of differentiation is the emphasis within EU data protection upon ‘the concept of informational self-determination’ allowing for personal control over one’s own data and its future use.87 Orla Lynskey highlights the role of data protection ‘as a proactive tool to reduce power and information asymmetries’.88 But as with the critique of individuation in human rights and in relation to privacy protection, there remain problems in applying a positive rights-based model to big data where the scale and technology involved contribute to asymmetry.89 Similarly, there are issues in achieving the ‘right balance’ between the free flow of information and achieving protections for data subjects such as a ‘right to be forgotten’.90 Along with familiar problems of containment in terms of definition, data bring new conceptual difficulties for regulation – data are abstract, personal, mobile and material.91 Again this generates jurisdictional difficulties for any international law framework as data cross public, private, domestic and international categories.92 The significant domestic and transnational developments occurring in data protection have yet to find an authoritative international legal form.93 Nevertheless, data protection is increasingly on the agenda of international lawyers and is a concern of international organisations.94 Kriangsak Kittichaisaree and Christopher Kuner write of the ‘growing need for legal rules protecting the processing of personallyidentifiable data, known as data protection, to be anchored more firmly in public international law’, but formidable challenges remain.95 These include ongoing

85 Charter of Fundamental Rights of the European Union [2012] OJ C 326/391. 86 These conceptual differences are explored in Lynskey, ‘Deconstructing Data Protection’ (2014) 573–74, 580–88. 87 ibid 591. 88 ibid 592. 89 Lynskey, ‘Grappling with “Data Power”’ (2019) 209–10. Nevertheless, Orla Lynskey suggests that ‘the right to data protection goes further than the right to privacy in mitigating and rectifying these power and information asymmetries by … providing for norms which balance individual interests against those of public and private sector entities’: Lynskey (n 75) 592, 594. 90 Google Spain v AEPD (European Court of Justice, C-131/12, ECLI:EU:C:2014:317, 13 May 2014) (Google Spain). 91 Humphreys (n 25) 196–97, 200–01. 92 For examination of these core jurisdictional questions, involving also the application of private international law to the internet and social media see: Thomas Schultz, ‘Carving Up the Internet: Jurisdiction, Legal Orders, and the Private/Public International Law Interface’ (2008) 19 European Journal of International Law 799; Alex Mills, ‘The Law Applicable to Cross-Border Defamation on Social Media: Whose Law Governs Free Speech in “Facebookistan”?’ (2015) 7 Journal of Media Law 1. 93 Humphreys (n 25) 201. Kriangsak Kittichaisaree and Christopher Kuner, ‘The Growing Importance of Data Protection in Public International Law’ (14 0ctober 2015) EJIL: Talk!, available at www. ejiltalk.org/the-growing-importance-of-data-protection-in-public-international-law. 94 Interview with Alexander Beck, ‘Data is Part and Parcel of Refugee Protection’ UNHCR Blogs (23 May 2018), available at www.unhcr.org/blogs/data-protection-part-parcel-refugee-protection. 95 Kittichaisaree and Kuner, ‘The Growing Importance of Data Protection in Public International Law’(2015).

Data Governance  107 normative differences between states, the rising power of platforms, problems in establishing institutional authority and adapting to technological change. Two cases at the European Court of Justice are illustrative of what is at stake and of the increasing transnational influence of the EU model. The first is the Google Spain case where the CJEU drew upon the earlier EU data protection directive and Articles 7 and 8 of the EU Charter of Fundamental Rights, to hold the search engine Google accountable for removing search results which caused prejudice to an individual data subject by associating him with criminal activity, in circumstances where there was not ‘a preponderant interest of the general public’ in such information.96 This case has generated controversy and a so-called ‘right to be forgotten’ which some fear has the potential to damage access to information and to increase the transnational reach of EU norms in this area. A subsequent case has established that such a consequent requirement to dereference on a search engine where the right to be forgotten is established does not extend beyond the EU’s jurisdiction, but leaves open the possibility for the European Parliament to extend the extra-territoriality of the EU General Data Protection Regulation (GDPR) and for Member States to adopt national laws to achieve dereferencing beyond the state.97 Here the contrast between US approaches to platforms, which largely absolve intermediaries of responsibility by applying ‘safe harbour’ provisions, and the EU GDPR framework with its strengthened protections for data subjects, is stark. A second EU case provides an example of the trend towards greater scrutiny of platforms and the fragmented transnational regulatory environment. The case was brought in the pre-GDPR context by the Austrian privacy activist Max Schrems in order to challenge the transfer of data by Facebook Ireland to the US, where it is stored.98 Schrems’ central argument was that US safe harbour principles and US laws more generally ‘did not ensure adequate protection of the personal data held in its territory against the surveillance activities that were engaged in there by the [US] public authorities’.99 His complaint was made against the backdrop of the Snowden revelations regarding mass surveillance by US security agencies. At the time all European users’ data on Facebook was transferred to the US via Ireland. Because of the difference in approach between Europe and the US in relation to data protection a European Commission decision had determined US safe harbour principles to be adequate in the context of the earlier European Data Protection Directive 95/46/EC.100 That Directive stated that ‘cross-border flows of personal

96 Google Spain [10]. 97 Google v CNIL (European Court of Justice, C-507/17, ECLI:EU:C:2019:772, 24 September 2019). This is a significant and complex case, for further analysis see Monika Zalnieriute, ‘Google LLC v Commission Nationale de l’Informatique et des Libertés (CNIL)’ (2020) 114 American Journal of International Law 261. 98 Maximillian Schrems v Data Protection Commissioner (European Court of Justice, Case C-362/14, ECLI:EU:C:2015:650, 6 October 2015) (Schrems). 99 Schrems [28]. 100 European Commission Decision 2000/520/EC of 26 July 2000 Pursuant to Directive 95/46/EC of the European Parliament and of the Council on the Adequacy of the Protection Provided by the Safe

108  Digital Publics data are necessary to the expansion of international trade’ but also that ‘the ­transfer of personal data to a third country which does not ensure an adequate level of protection must be prohibited’.101 This was a pragmatic compromise which weakened data protection for European citizens using dominant US-based platforms such as Facebook. But concerns remained about the ability of the US intelligence community to access the data of European citizens when the PRISM surveillance program was itself certified under this safe harbour scheme.102 The claim made its way from the Irish courts to the European Court of Justice which considered the adequacy of protections contained in Decision 2000/520 in light of Articles 7, 8 and 47 of the EU Charter of Fundamental Rights and also Article 25(6) of the EU Data Protection Directive 95/46.103 The Court was attentive to the balancing of the right to privacy and ‘interests requiring free movement of personal data’.104 Looking to the US landscape, concerns related to the self-certification of compliance there and the possibility of derogation due to ‘national security and public interest requirements’.105 This created a problem for compliance with EU privacy protection, with the Court observing that ‘legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right for respect of private life’.106 The Court concluded that Articles 1 and 3 of Decision 2000/520 did not comply with Article 25(6) of Directive 95/46 in the context also of the Charter, and therefore the decision as a whole was invalid.107 At one level the decision is a powerful illustration of the increasing significance of data protection as a means of protecting digital publics, but it is notable that the state remains the target of concern in the judgment, despite Schrems’ data being transferred to the US by Facebook and the implications for platforms more broadly. Following the decision another deal regarding data flows, the EU-US Privacy Shield Agreement, was struck.108 The Schrems case also reminds us of the move more broadly to connect data protection with digital trade developments. Trade lawyers view international data Harbour Privacy Principles and Related Frequently Asked Questions Issued by the US Department of Commerce [2000] OJ L 215. 101 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data [1995] OJ L 281, Recitals 56 and 57, see also Arts 25(1) and 26(2). 102 Schrems [22]–[25]. 103 ibid [34]–[36]. 104 ibid [42]. 105 ibid [79]–[90]. 106 ibid [94]. The Court found similarly that ‘legislation not providing for any possibility for an individual to pursue legal remedies in order to have access to personal data relating to him, or to obtain the rectification or erasure of such data, does not respect the essence of the fundamental right to effective judicial protection’: [95]. 107 ibid [98], [104]–[06]. 108 At the time of writing Max Schrems is involved in further litigation, this remains a dynamic area: Ashley Gorski, ‘EU Court Grapples with US Surveillance in Schrems II’ Just Security (26 July 2019), available at www.justsecurity.org/65069/eu-court-of-justice-grapples-with-u-s-surveillance-in-schrems-ii.

Data Governance  109 flows in economic terms with privacy in the form of data protection configured as a limitation upon digital trade. Cases like Schrems and subsequent strengthening of EU data protection with the GDPR have generated both concern and interest amongst trade lawyers in data protection and its effect on international transfers of data.109 Aaditya Mattoo and Joshua P Meltzer argue that because of normative differences regarding data and privacy protection at the international level ‘Global regulatory convergence around GDPR’s privacy standards is unlikely’.110 They add that a further factor will be the economic cost of implementation in developing countries.111 They point to the post-Schrems EU–US Privacy Shield Agreement as ‘offering a way of resolving the conflict between regulatory heterogeneity and international data flows’.112 Sadly this optimism is not matched by the reality of a functioning international legal framework. Digital trade scholarship has also begun to address internet governance more broadly.113 But the trade law vision here is of human rights being translated to secondary, soft design and governance principles for a self-regulating global digital economy.114 This is what the trade and human rights debate of old now looks like – retaining the ideological ambitions of earlier liberal internationalism, but stated in the chastened contemporary discourse of soft law governance and ordering. The effects for digital publics will be all too familiar. Rights will continue to be compromised in order to fuel the new digital economy. Without effective international legal frameworks powerful private actors within that economy will be able to largely pick and choose where and how to operate, and to do so on their own terms. It is questionable whether international trade law can effectively regulate the digital media economy by simply determining ‘compatibility’ between new modes of digital governance and the World Trade Organization (WTO) disciplines such as the General Agreement on Trade in Services (GATS).115 Rights frameworks have been resilient and adaptive in digital contexts but, as we examined earlier, they struggle with private forms of power, and have only fairly recently begun to address data protection at the scale now required. Data helps to shape and define

109 See for example: Aaditya Mattoo and Joshua P Meltzer, ‘International Data Flows and Privacy: The Conflict and Its Resolution’ (2018) 21 Journal of International Economic Law 769, 771; Neha Mishra, ‘Privacy, Cybersecurity, and GATS Article XIV: A New Frontier for Trade and Internet Regulation?’ (2019) World Trade Review 1. See also GDPR Arts 44–50 regarding international transfers of data. 110 Mattoo and Meltzer (ibid) 770. 111 ibid 771, 777–79. 112 Mattoo and Meltzer consider also the digital trade aspects of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership and the United States-Mexico-Canada Agreement: ibid 771, 783–84. 113 See for example, Neha Mishra, ‘Building Bridges: International Trade Law, Internet Governance, and the Regulation of Data Flows’ (2019) 52 Vanderbilt Journal of Transnational Law 463, esp 506–07. 114 See for example, Mishra (ibid) 498. 115 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 190 (entered into force 1 January 1995) annex 1B (General Agreement on Trade in Services) (GATS). Mishra (ibid) 498–01.

110  Digital Publics digital publics whilst its collection and use may both constitute a threat to human rights and autonomy.116

V.  Platform Governance Whilst much of the concern regarding data protection is directed at information held by governments, commercial operators are often now regarded as posing the most significant threats to privacy. Digital media companies such as Google hold huge amounts of information about consumer preferences and online activity, as do social networking sites such as Facebook and companies involved in e-commerce. The policies these companies adopt regarding privacy and data protection carry powerful regulatory impacts. The leading US social media companies’ profits in turn rely on a model of targeted digital advertising driven by a process of data extraction, which Shoshana Zuboff has more broadly termed ‘surveillance capitalism’.117 But given the monopoly of certain companies like Facebook over social media, and their pervasive influence, it can be very difficult for individuals to remove themselves from this communicative infrastructure, even when their privacy and data interests are harmed.118 The threat posed by digital media platforms to both individual human rights and to democracy was brought into full focus by the Cambridge Analytica scandal. The company Cambridge Analytica was exposed as having harvested the Facebook data of millions of users without their knowledge. It then profited from the use of that data in efforts to manipulate democratic elections, including in the US.119 This scandal drew attention to a lack of data protection for users of platforms such as Facebook and also to Facebook’s own inability to effectively govern itself. The social costs of platforms are not limited to those originating in Silicon Valley. In other contexts, such as China, platforms wield significant data power and there are fears of efforts by the state to direct such power for political purposes and social control.120 In politically sensitive areas such as Xinjiang, surveillance technologies 116 Stephen Humphreys, ‘Conscience in the Datasphere’ (2015) 6 Humanity: An International Journal of Human Rights, Humanitarianism, and Development 361, 363. 117 Shoshana Zuboff writes, ‘Surveillance capitalism unilaterally claims human experience as free raw material for translation into behavioral data. Although some of these data are applied to product or service improvement, the rest are declared as a proprietary behavioral surplus, fed into advanced manufacturing processes known as “machine intelligence”, and fabricated into prediction products that anticipate what you will do now, soon, and later’: Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight For a Human Future at the New Frontier of Power (London, Profile Books, 2019) 8. 118 The Editorial Board, ‘Total Surveillance Is Not What America Signed Up For’ The New York Times (21 December 2019), available at www.nytimes.com/interactive/2019/12/21/opinion/location-dataprivacy-rights.html. 119 See further Carole Cadwalladr and Emma Graham-Harrison, ‘Revealed: 50 Million Facebook Profiles Harvested for Cambridge Analytica in Major Data Breach’ The Guardian (18 March 2018), available at www.theguardian.com/news/2018/mar/17/cambridge-analytica-facebook-influence-us-election. 120 See further: Sam Gregory, ‘Cameras Everywhere Revisited: How Digital Technologies and Social Media Aid and Inhibit Human Rights Documentation and Advocacy’ (2019) 11 Journal of Human

Platform Governance  111 have been used in combination with detention camps to control and repress local populations, resulting in ongoing mass human rights violations.121 Frank La Rue, in his 2011 report on internet freedom, pointed to a range of concerns regarding overt internet censorship by states such as China.122 But those familiar concerns were extended in the context of the co-option of internet intermediaries in such censorship and surveillance.123 He noted the safe harbour provisions in domestic and regional contexts such as the US and the EU which protect platforms from liability, but argued that platforms themselves were not always best placed to make regulatory decisions regarding content, nor were they transparent as regards their internal decision-making processes when required to participate in ‘notice-and-takedown’ regimes to guarantee their protection from liability.124 Such concerns have proved prescient. La Rue’s statement at the time that ‘Generally, companies have played an extremely positive role in facilitating the exercise of the right to freedom of opinion and expression’ now seems optimistic, though it is also balanced with a call for businesses to engage with their human rights responsibilities and with multi-stakeholder processes such as the Global Network Initiative.125 The current UN Special Rapporteur, David Kaye, has responded to the dangers posed to freedom of expression by big tech, extending the focus of his mandate to cover also the role and responsibility of private actors such as corporations.126 This chimes with moves to better engage business and human rights through soft law frameworks and consumer advocacy, and also to think more deeply of the role of human rights in regulating platforms and their algorithms.127 In response to this Rights Practice 373, 376; Daithí Mac Síthigh and Mathias Siems, ‘The Chinese Social Credit System: A Model for Other Countries?’ (2019) 82 Modern Law Review 1034; Nicole Kobie, ‘The Complicated Truth About China’s Social Credit System’ Wired (7 June 2019), available at www.wired.co.uk/article/ china-social-credit-system-explained; Steven McDonell, ‘China Social Media: WeChat and the Surveillance State’ BBC News (7 June 2019), available at www.bbc.com/news/blogs-china-blog-48552907. 121 Darren Byler, ‘China’s High-Tech War on Its Muslim Minority’ The Guardian (11 April 2019), available at www.theguardian.com/news/2019/apr/11/china-hi-tech-war-on-muslim-minority-xin jiang-uighurs-surveillance-face-recognition. See further: Isobel Cockerell, ‘Inside China’s Massive Surveillance Operation’ Wired (9 May 2019), available at www.wired.com/story/inside-chinas-massivesurveillance-operation; Erin Handley, ‘China’s Mass Surveillance of Uyghur Muslims in Xinjiang Province Revealed in Data Security Flaw’ ABC News (19 February 2019), available at www.abc.net.au/ news/2019-02-18/chinas-mass-surveillance-of-uyghur-muslims-revealed-in-data/10820634. 122 Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (n 57) para 29. 123 ibid paras 39–40. 124 ibid paras 41–42. 125 ibid para 44, see also paras 45–46. 126 See for example David Kaye, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc A/HRC/32/38 (11 May 2016). 127 John Ruggie, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Enterprises: Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, 17th sess, UN Doc A/HRC/17/31 (21 March 2011). See an important and wide-ranging examination of human rights and platforms in Rikke Frank Jørgensen (ed), Human Rights in the Age of Platforms (Cambridge, The MIT Press, 2019). See also Lorna McGregor, Daragh Murray and Vivian Ng,

112  Digital Publics pressure from publics, there are a number of examples of digital media companies taking regulation into their own hands.128 However, self-regulation remains inadequate, ad hoc and driven by reputational concerns rather than longer term public policy needs and considerations. Consumer action is hampered by the sheer monopoly of companies such as Facebook. Even at the height of the Cambridge Analytica scandal in 2018 users of Facebook were discussing how bad Facebook was on Facebook. It was very difficult for the majority to disentangle themselves from what has become a key platform for communication.129 Apologies were of course offered by Mark Zuckerberg, but this exercise in public relations damage control continued alongside the strategic lobbying of governments for legal protections. Despite unfavourable public sentiment platforms have continued with sustained efforts to shape transnational and domestic regulation of intermediaries, all the while downplaying their responsibilities.130 Such has been the public pressure that Mark Zuckerberg has called for new rules for the internet. Whilst acknowledging that much of the regulation of online speech is done by Facebook and other platforms, he argues: ‘But if we were starting from scratch, we wouldn’t ask companies to make these judgements alone … I believe we need a more active role for governments and regulators’.131 In response to continuing criticism of ‘International Human Rights Law as a Framework for Algorithmic Accountability’ (2019) 68 International and Comparative Law Quarterly 309. 128 See for example: Monica Bickert, ‘Enforcing Against Manipulated Media’ (6 January 2020), available at about.fb.com/news/2020/01/enforcing-against-manipulated-media; Colin Stretch, ‘FTC Agreement Brings Rigorous New Standards for Protecting Your Privacy’ (24 July 2019), available at about.fb.com/news/2019/07/ftc-agreement; ‘What Is Facebook Doing to Address the Challenges It Faces?’ (4 February 2019), available at about.fb.com/news/2019/02/addressing-challenges; ‘Instagram: Our Progress on Leading the Fight Against Online Bullying’ (16 December 2019), available at about.fb.com/news/2019/12/our-progress-on-leading-the-fight-against-online-bullying; ­Twitter, ‘Rules and Policies’, available at https://help.twitter.com/en/rules-and-policies; Donald Hicks and David Gasca, ‘A Healthier Twitter: Progress and More to Do’ (16 April 2019), available at blog.twitter. com/en_us/topics/company/2019/health-update.html; Twitter Safety, ‘New Disclosures to Our Archive of State-backed Information Operations’ (20 December 2019), available at blog.twitter.com/en_us/ topics/company/2019/new-disclosures-to-our-archive-of-state-backed-information-operations.html; YouTube, ‘Policies and Safety’, available at www.youtube.com/about/policies/#community-guidelines; ‘Better Protecting Kids’ Privacy on YouTube’ (6 January 2020), available at youtube.googleblog. com/2020/01/better-protecting-kids-privacy-on-YouTube.html; Matt Halprin, ‘An Update to Our Harassment Policy’ (11 December 2019), available at youtube.googleblog.com/2019/12/an-update-toour-harassment-policy.html. 129 ‘Overall, Facebook now boasts 2.7 billion monthly users across its family of apps. That includes Messenger, WhatsApp, Instagram, and core Facebook, with 2.1 billion of those people accessing one of the apps every day’: Mariel Soto Reyes, ‘Scandals and Teen Dropoff Weren’t Enough to Stop Facebook’s Growth’ Business Insider (27 April 2019), available at www.businessinsider.com/ facebook-grew-monthly-average-users-in-q1-2019-4/?r=AU&IR=T. 130 Naomi Nix, Ben Brody and Bloomberg, ‘Facebook and Amazon Set Lobbying Records as Washington Eyes Big Tech’s Business Practices’ Fortune (22 October 2019), available at fortune.com/2019/10/22/ facebook-amazon-lobbying-records-washington-tech-business-practices; Cecilia Kang and Kenneth P Vogel, ‘Tech Giants Amass a Lobbying Army for an Epic Washington Battle’ The New York Times (5 June 2019), available at www.nytimes.com/2019/06/05/us/politics/amazon-apple-facebook-googlelobbying.html. 131 Farhad Manjoo, ‘Can Facebook Fix Its Own Worst Bug?’ The New York Times Magazine (25 April 2017), available at www.nytimes.com/2017/04/25/magazine/can-facebook-fix-its-own-worst-bug.html.

Platform Governance  113 its self-regulation, Facebook has created an Oversight Board, which promises a mechanism for an ‘independent’ appeal process of Facebook’s own content review decisions in light of Facebook’s community standards and the value of freedom of expression.132 Simultaneously, Facebook’s CEO has been dreaming of a new digital global infrastructure with the private power of platforms at its core. He sees Facebook as building the infrastructure for global community.133 This represents a threat to the current international institutional order, which, as we shall see in chapters five and six, has not only struggled to regulate digital media, but also finds itself increasingly reliant upon it as a tool for engaging publics. This dependence upon the digital infrastructure of communicative capitalism and associated concerns regarding surveillance may deepen as a result of state responses to the COVID-19 pandemic.134 There are dangers posed to human rights in continuing reliance upon private platforms for mass surveillance, but arguments for reform may be lost in the rush to address this public health crisis with technology.135 As we have seen so far, the internet and other significant forms of global information infrastructure have developed in the absence of effective international legal regulation, and in the interests of powerful states and global digital media corporations.136 Domestic laws are often unable to effectively regulate or tax transnational platforms which span multiple jurisdictions and are structured to limit their liability in media law terms. International economic laws, without a significant focus on competition in terms of the media, do not sufficiently address the rise of digital media platforms. This absence positions dominant US platforms such as Google and Facebook, and the Chinese internet giants including Baidu, Alibaba and Tencent as key, and at times conflictual, players in shaping global information flows and communication. Both models pose significant dangers to digital publics. 132 Brent Harris, ‘Preparing the Way Forward for Facebook’s Oversight Board’ (28 January 2020), available at about.fb.com/news/2020/01/facebooks-oversight-board; Catalina Botero-Marino, Jamal Greene, Michael W McConnell and Helle Thorning-Schmidt, ‘We Are a New Board Overseeing Facebook. Here’s What We’ll Decide.’ The New York Times (6 May 2020), available at www.nytimes. com/2020/05/06/opinion/facebook-oversight-board.html. 133 Mark Zuckerberg, ‘Building Global Community’ (16 February 2017), available at www.facebook. com/notes/mark-zuckerberg/building-global-community/10103508221158471/?pnref=story. 134 See further: Article 19, ‘Covid-19: Surveillance Must Not Be Used as an Excuse to Entrench Surveillance’ (20 March 2020), available at www.article19.org/resources/covid-19-surveillance-mustnot-be-used-as-an-excuse-to-entrench-surveillance. 135 Cynthia M Wong, ‘Social Media’s Moral Reckoning: Changing the Terms of Engagement with Silicon Valley’ (21 December 2018), available at www.hrw.org/news/2018/12/21/social-medias-moralreckoning; Amnesty International, ‘Surveillance Giants: How the Business Model of Google and Facebook Threatens Human Rights’ (21 November 2019), available at www.amnesty.org/en/docu ments/pol30/1404/2019/en; Amnesty International, ‘COVID-19, Surveillance and the Threat to Your Rights’ (3 April 2020), available at www.amnesty.org/en/latest/news/2020/04/covid-19-surveillancethreat-to-your-rights. 136 Orla Lynskey argues that platform capitalism results in data power which needs to be regulated, including by data protection laws: ‘as information is power, and it increases the quantity of information in the hands of the entity aggregating data, it also increases the power of that entity and therefore exacerbates preexisting power and information asymmetries’: Lynskey (n 81) 201–03.

114  Digital Publics To date, then, international law’s development and reach as regards digital media has been inconsistent and inadequate. And yet human rights frameworks have continued to influence debates over how best to govern the global communications infrastructure of digital media. This is again illustrated by the contemporary movement towards platform governance. Platform governance draws upon notions of ‘the rule of law’, constitutionalism, transparency and human rights concerns.137 It also adopts the self-regulatory, soft law focus of the ‘business and human rights’ movement. Tarleton Gillespie has written of two dimensions of platform governance, regulation of and by platforms, but largely we have seen the latter.138 As Gillespie argues, ‘Both in terms of their impact on public discourse, and for the lived experience of … users, the rules these platforms impose themselves probably matter more than the legal restrictions under which they function’.139 This regulatory model is, however, itself shaped by the self-interested rejection by commercial platforms of both the label of media and of external forms of regulation. These companies have to date largely disowned the responsibilities of traditional publishers, drawing on the deregulatory example of internet governance as justification. This position is increasingly untenable. Platform governance is welcome if it can restrain the enormous digital power of these internet giants, but at present its own limitations loom large. Self-regulation is offered and practised as a form of damage control. Regulation itself is mediatized as self-promotion and publicity. First comes the apology and then the virtue of self-restraint, all crafted with the goals of communicative capitalism at heart rather than driven by the interests, needs or rights of informed publics. This is a very hollow model of international media law with profit and the attention economy at its core. It is beyond time to effectively regulate digital media, both at a domestic and international level.140 In these last three chapters I have sketched out why this is necessary and how it will involve considerable challenges, not least politically. Much can be learned from the slow and uneven historical development of international media law, but perhaps most of all from its absence. We must remain critical and realistic as to the limitations of international law as regards media, but also to its utility and promise.

137 See here, for example, the pioneering work of: Tarleton Gillespie, Custodians of the Internet: Platforms, Content Moderation and the Hidden Decisions that Shape Social Media (New Haven, Yale University Press, 2018); and Nicolas P Suzor, Lawless: The Secret Rules that Govern Our Digital Lives (Cambridge, Cambridge University Press, 2019). 138 Tarleton Gillespie, ‘Regulation of and by Platforms’ in Jean Burgess, Thomas Poell and Alice Marwick (eds), The Sage Handbook of Social Media (Los Angeles, Sage, 2017) 254–78. 139 ibid 262. 140 There are domestic developments of note here including in the United Kingdom: Alex Hern and Jim Waterson, ‘Ofcom to Be Put in Charge of Regulating Internet in UK’ The Guardian (12 ­February 2020), available at www.theguardian.com/media/2020/feb/12/ofcom-to-be-put-in-charge-of-regulatinginternet-in-uk.

Summary  115

VI. Summary Contemporary debates regarding information flows, infrastructure and the ­capacity of international law to ensure freedoms, access and order, reinforce both the complexity of theorising the public in public international law and the need to recognise the role of the media and mediatization in the system of global governance. International law and media are presented as being existentially threatened by technological disruption, economic and political crisis and a loss of faith in globalisation. I argue that a part of this ‘crisis’ relates to the ongoing failure of international legal frameworks to address the rise of information capitalism in the form of digital media monopoly. It is remarkable how little public international law regulation has shaped this emerging digital media economy which has risen to prominence in the context of neoliberal practices and against a backdrop which championed communicative capitalism as a key driver of globalisation.141 The digital media industry is a critical global actor in the production of knowledge and its dissemination. This needs greater recognition within international legal scholarship, but also requires reassessment in terms of regulation. Co-ordinated data protection and increased attention to the considerable data power of digital media platforms will be critical ingredients for any future functioning digital media law. The conception of informed publics offered in chapter one involves unsettling a universal model for the public sphere, and understands publics as playing an active role in global information networks. This process is reliant on material infrastructures such as the data cables which ring and connect our continents.142 Questions of how the global communicative infrastructure is governed, and in turn itself governs, therefore remain urgent for global governance and for deepening participation on the international plane. As we have seen to this point, international media law can play a role here, but it is incomplete and sometimes absent. My argument has been that despite these challenges, it remains important for digital publics and for co-existence more generally that international media law continues to develop, and that it adapts to the changing digital landscape. The converged form of digital media points to the need to regulate both in terms of infrastructure and content. Digital media platforms cannot be left to continue to govern themselves. But to challenge the system as it currently stands will also involve a deeper appreciation of the ways in which international law itself has been shaped by the media and mediatization. I turn now to consider this in the context of publicity’s power and role in the international institutional context. 141 On neoliberalism see Naomi Klein, No is Not Enough: Defeating the New Shock Politics (London, Allen Lane, 2017) 79–80. At 80 Klein argues: ‘Under the neoliberal worldview, governments exist in order to create the optimal conditions for private interests to maximize their profits and wealth, based on the theory that the profits and economic growth that follow will benefit everyone’. 142 Humphreys (n 25) 197–99.

5 Publicity The turn to publicity as a technique masks an underlying privatisation of ­international life. This theme emerged in earlier chapters where the rhetoric of free speech and prohibition of incitement were shadowed to some extent by the preference for private models of regulation in areas such as telecommunications and the internet. These arguments for self-regulation draw on both market-driven beliefs and free speech advocacy. This is well illustrated in the absence of public international regulation of the internet. As we have seen in chapter four, this points to significant gaps or weaknesses in the international regulation of the media, which have been increasingly exploited by transnational media companies and digital platforms. Now I turn to examine the multifaceted relationship between media and international law from a different angle. In these final chapters I focus on the mediatization of international law, building on the earlier analysis of international media law, but considering by contrast how the media itself is coming to shape international law. How to foster and engage global publics remains an urgent challenge for international law.1 International courts and tribunals have responded to this problem with increased attention to publicity and public relations. Their response has often been inadequate, motivated by immediate strategic concerns and inspired by communicative models of accountability taken from domestic contexts in the place of a deeper commitment to fostering global co-existence and equal participation. Similar issues are encountered with international organisations where there is concern regarding their lack of accountability despite increasing publicity.2 Yet in spite of the problem of identifying a relevant global public or publics, examined in chapter one, publicity has become central to perceptions of the effective functioning, integrity and legitimacy of international law and its actors. This has traditionally been linked with democracy and rule of law considerations, but it need not be. As Jodi Dean has argued, publicity can itself act in ideological terms to obscure the commodification of the public sphere, and to weaken democracy. The media, processes of publicity, and the politics of information and secrecy are 1 See Philip Liste, ‘“Public” International Law? Democracy and Discourses of Legal Reality’ (2011) 42 Netherlands Yearbook of International Law 177. 2 This issue is dealt with extensively in Eyal Benvenisti, ‘Upholding Democracy Amid the Challenges of New Technology: What Role for the Law of Global Governance?’ (2018) 29 European Journal of International Law 9.

Institutional Publicity  117 all linked to what she has termed ‘communicative capitalism’, a significant insight to which we will return in greater detail in the next chapter.3 In this chapter I argue that paying greater attention to publicity, as a dimension of mediatization, can help us to better understand and critique the contemporary character of public international law.4 To do so I begin by examining a common form of publicity labelled ‘outreach’, considering its impact in contexts such as the International Court of Justice (ICJ), the United Nations, the World Trade Organization (WTO), the International Telecommunication Union (ITU) and the Internet Corporation for Assigned Names and Numbers (ICANN). This form of publicity involves both international legal institutional reliance on the media as an actor for dissemination, but also some mimicry of media techniques and practices.5 Here we see the mediatization of courts, tribunals, international organisations and NGOs in their pursuit of legitimacy, attention and effect. But in question throughout is the cost of such activities and the rather tired ideological assumptions underpinning them. Next I explore these developments within international criminal law, which is perhaps the most mediatized of all fields considered. International criminal law provides an interesting case study for determining the effects and limitations of media outreach and publicity. This area of law and practice reminds us both of the significance of media interactions and of their dangers, as when war crimes trials become cathartic public spectacles. I then examine the parallel turn to digital media witnessing as a form of human rights practice. Again, there are potential benefits here in terms of evidence, advocacy and impact, but at what cost? At stake throughout the chapter are questions relating to publicity, participation and the ‘public’ character of international law.

I.  Institutional Publicity The media’s role in international law is at one level simply to make things public, and this process is implicated in the functioning and enforcement of international law. This communicative dimension of international law underpins a broader sense of international courts (in contrast with much of international arbitration) maintaining a form of open justice that is accessible and comprehensible to the wider public.6 Yet ideas of accountability to a general public and of associated forms 3 Jodi Dean, Publicity’s Secret: How Technoculture Capitalizes on Democracy (Ithaca, Cornell University Press, 2002) 3–4. 4 For a fascinating, but different, focus upon publicity in the context of treaties see Megan D ­ onaldson, ‘The Survival of the Secret Treaty: Publicity, Secrecy, and Legality in the International Order’ (2017) 111 American Journal of International Law 575. 5 In certain contexts publicity also accompanies procedural reform encouraging broader participation. 6 Armin von Bogdandy and Ingo Venzke, ‘In Whose Name? An Investigation of International Courts’ Public Authority and Its Democratic Justification’ (2012) 23 European Journal of International Law 7. Publicity is of course connected more broadly with the rule of law: Bruno Celano, ‘Publicity and

118  Publicity of publicity have not always been welcomed by international legal institutions, ­especially those like the ICJ with its largely consensual and inter-state character. Writing of an earlier era, Manley Hudson noted in 1944 that ‘Few international tribunals in the past have arranged for a systematic publication of texts of their decisions to make them available for the general public’.7 This began to change through the creation of permanent courts such as the Permanent Court of International Justice (PCIJ) and its successor the ICJ. For Hersch L ­ auterpacht, the significance of the ICJ in promoting respect for international law is due in part to the public nature of its judgments – the ‘revealed reasoning of its pronouncements’.8 He wrote that the ‘deliberate process of revealing fully the manner of their operation is the only concession which an international tribunal may properly make to the susceptibilities and claims of sovereignty’.9 At the same time, however, publicity has also been seen as a hindrance to effective judicial settlement of disputes, especially where a dispute may be further inflamed by wider publicity, or where litigation may be undertaken for advocacy purposes rather than to settle a dispute. Writing of the PCIJ, Hudson remarked in 1934 that: The judgments of the Court must find their principal sanction in the public opinion which rallies to their support, and the experience of twelve years would seem to justify some confidence that in most cases, at any rate, this sanction will be adequate.10

As we examined in chapter one, public opinion has been a persistent concern for international law and its developing institutions throughout the twentieth century, with publicity engaged as a method to attempt to shape, harness and sometimes contain it. In the present day, publicity continues to be central to the enforcement of international law. Though Article 59 of the ICJ Statute, read alongside Article 94 of the UN Charter, requires compliance with judgments of the Court, there remains concern about the efficacy of ICJ judgments and about the reluctance of the UN Security Council to attach consequences to non-compliance with them. Constanze Schulte argues in fact that public opinion may be a hindrance to compliance with the decisions of the ICJ.11 As with evidence, the ICJ’s approach to remedies is marked by considerable flexibility, not to say fluidity.12 Nevertheless, the commonly used technique of the declaratory judgment is one example of the

the Rule of Law’ in Leslie Green and Brian Leiter (eds), Oxford Studies in Philosophy of Law: Volume 2 (Oxford, Oxford Scholarship Online, 2013). 7 Manley O Hudson, International Tribunals: Past and Future (Washington, Carnegie Endowment for International Peace and Brookings Institution, 1944) 119. 8 Hersch Lauterpacht, The Development of International Law by the International Court (London, Stevens & Sons, 1958) 400. 9 ibid. 10 Manley O Hudson, The Permanent Court of International Justice (New York, MacMillan, 1934) 430. 11 Constanze Schulte, Compliance with Decisions of the International Court of Justice (Oxford, Oxford University Press, 2004) 414–15. 12 Christine D Gray, Judicial Remedies in International Law (Oxford, Clarendon Press, 1987) 107–08.

Institutional Publicity  119 importance of publicity in the system. Though the declaratory judgment is not intended to shame a state, its public nature may help in resolving a dispute.13 There is another layer to consider with regard to international courts and ­tribunals – that of publicity as a form of open justice.14 In the domestic common law context, open justice represents a systemic ideal and an aspect of the rule of law. The principle that courts should be open to all in order for the administration of justice to function effectively and with systemic integrity, in turn relies upon the presence of the media and their role in terms of court reporting. Joseph Jaconelli argues that open justice is ‘the legal rule which requires courts and other bodies which discharge functions of a judicial nature to conduct their proceedings in public’.15 But what values are served by public trials and what dangers exist? For example, Jaconelli observes that ‘excessive public attention may degenerate into a “show trial”, or … may invade important interests of participants in the trial’.16 Contentious and politicised litigation conducted with publicity at the ICJ may contribute to enforcement but may arguably also generate a form of international law as advocacy where broader normative messaging takes priority over enforcement or remedy.17 Today the ICJ’s website is an important aspect of its broader functioning, acting as a portal for the media and the public to engage with the work of the Court, to learn about its history and membership and to access both formal judgments, audio-visual content, and media-friendly short summaries.18 The Court also uses social media to update its constituents.19 As with other mechanisms of open access court reporting which rely on the internet this represents a significant development with implications for open justice and the broader standing of the Court in the international context.20 Nevertheless, in the wider competition for attention the ICJ finds itself one of many actors on the international plane with the means to publish and publicise. Open justice does not guarantee the enforcement or broader effect of its judgments, nor does it ensure public interest in and engagement with the work of the court. Yet despite the considerable complexity involved in sustaining public engagement with international law, the turn to publicity in

13 ibid 155. Lauterpacht takes a narrower view of the nature of the declaratory judgment in the ICJ, as ‘judgments unrelated to a concrete claim for redress in respect of an alleged particular act’: ­Lauterpacht, The Development of International Law (1958) 250. 14 The ICJ Rules require the Registrar to ‘ensure that information concerning the Court and its activities is made accessible to governments, the highest national courts of justice, professional and learned societies, legal faculties and schools of law, and public information media’: International Court of Justice, Rules of Court (adopted 14 April 1978) Art 26(1)(m). 15 Joseph Jaconelli, Open Justice: A Critique of the Public Trial (Oxford, Oxford University Press, 2002) 1. 16 ibid. 17 See for example Whaling in the Antarctic (Australia v Japan: New Zealand intervening) (Judgment) [2014] ICJ Rep 2014, 226. 18 www.icj-cij.org/en. 19 See twitter.com/CIJ_ICJ. 20 See, for example, the Australian Legal Information Institute (AustLii): www.austlii.edu.au.

120  Publicity the institutional context of international courts has intensified, and we can also observe a similar trend in the context of international organisations. Indeed, as Jonas Brendenbach, Martin Herzer and Heidi Tworek argue, ‘International organizations used the media from the start’.21 The United Nations engages the media in a variety of ways.22 It undertakes both public relations and its own media work, whilst also involving itself in the development and control of local media in peace-keeping and post-conflict operations. The UN’s information bureaucracy, formerly known as the Department of Public Information (DPI), has recently been rebranded as the Department of Global Communications (DGC). The Department was originally created by General Assembly resolution and is overseen by the General Assembly’s Committee on Information.23 The Committee on Information was itself shaped by Cold War debates associated with a new world information and communication order (NWICO), as discussed in chapter one.24 The Committee on Information’s mission has since been adapted to take into account new priorities and the development of communications technologies, along with criticisms of UN endeavours in this sphere. The DGC takes charge of UN public relations, running a wide variety of its own media services and regional information centres.25 Like the ICJ, the UN has turned to a range of social media platforms to help publicise its message and diverse range of endeavours.26 The DGC’s role is to publicise the activities and concerns of the UN to a global audience and to assist the organisation to achieve maximum public impact. Linguistic diversity in its communications remains a priority. The DGC is an important part of the Secretariat and is led by the Under-Secretary-General for Global Communications. The DGC website currently declares of itself: The United Nations is indispensable as a forum for building a better world and solving complex and evolving challenges … The Department of Global Communications tells 21 Jonas Brendenbach, Martin Herzer and Heidi Tworek, ‘Introduction’ in Jonas Brendenbach, Martin Herzer and Heidi Tworek (eds), International Organizations and the Media in the Nineteenth and Twentieth Centuries: Exorbitant Expectations (Abingdon, Routledge, 2018) 3. 22 See further Carlo Focarelli, International Law as Social Construct: The Struggle for Global Justice (Oxford, Oxford University Press, 2012) 138–39. 23 Recommendations of the Technical Advisory Committee on Information Concerning the Policies, Functions and Organization of the Department of Public Information, GA/RES/13(1) (13 February 1946). United Nations Committee on Information, available at www.un.org/en/ga/coi/. See also United Nations Department of Global Communications, available at www.un.org/en/sections/departments/ department-global-communications. 24 See further UN General Assembly, Questions Relating to Information, GA Res 34/182, UN Doc A/RES/34/182 (19 December 1979). 25 The United Nations Department of Global Communications’ News and Media Division oversees the direct production of its own media content in both traditional and digital contexts: www.un.org/en/ sections/departments/department-global-communications/news-media/index.html. Further description of the range of media services including the flag ship UN News Centre is provided at United Nations Department of Global Communications, ‘Getting the News Out’: www.un.org/en/sections/ departments/department-global-communications/getting-news-out/index.html. 26 United Nations, ‘The UN on Social Media’: www.un.org/en/sections/about-website/un-socialmedia/index.html.

Institutional Publicity  121 this UN story across multiple platforms, digital and traditional, to build support for the aims and work of the United Nations. Through our global operations and offices in 60 countries, we reach millions of people with trusted, objective information and an inclusive message that enables the public, civil society, private sector and Member States to engage in the work of the United Nations.27

This illustrates the steady mediatization of the UN in recent times and its reliance upon informed publics to function. The rebranding of the DPI, and the semantic move from ‘public information’ to ‘global communications’, evidences both the energy the UN is expending in the area of publicity and the shift in the global media landscape since its inception. The DGC remains concerned with increasing global awareness of issues which the organisation as a whole regards as priority themes, but its engagement with digital media and its embrace of private actors and platforms is more recent.28 So too is its emulation of the mediatized forms of many human rights NGOs.29 For example, the mission of the DGC is summarised on its website as ‘Inform. Engage. Act.’ – a three-word marketing slogan mimicking the tag line (‘See It. Film It. Change It.’) of the human rights NGO Witness which has pioneered digital media witnessing.30 Such slogans are ubiquitous in the advertising-influenced practices of global commerce, helping to consolidate the power of dominant brands. These forms of communicative capitalism now influence and shape the institutions of global governance, often twinned with a legitimising discourse of humanitarianism, as will be explored further in chapter six. It is clear that such public relations activities can contribute to the communicative power of the UN, but what is the cost? Much of this mediatization (in the form of publicity) is premised on the notion that it is the UN which is the legitimate actor to deal with situations of global concern and to co-ordinate the multilateral actions of its members, and that its actions reflect broad consensus. This is contested, and publicity by itself will not address the deeper divisions and the underlying question of whose interests are served by the UN and whose are forgotten or ignored. As was made clear in chapter one, appeals to a universal global audience often underplay the complex and contested politics involved in the constitution of informed publics. What is clear is that there is increased ­attention to the issues of 27 United Nations Department of Global Communications, ‘Overview’: www.un.org/en/sections/ departments/department-global-communications/index.html. 28 United Nations Department of Global Communications, ‘Strategic Communications’: www.un. org/en/sections/departments/department-global-communications/strategic-communications. The process of publicising these strategic priorities is described as ‘spotlighting issues’: United Nations Department of Global Communications, ‘Spotlighting Issues’: www.un.org/en/sections/departments/departmentglobal-communications/spotlighting-issues/index.html. 29 For further discussion of this phenomenon see: Daniel Joyce, ‘Human Rights and the Mediatization of International Law’ (2010) 23 Leiden Journal of International Law 507; Matthew Powers, NGOs as Newsmakers: The Changing Landscape of International News (New York, Columbia University Press, 2018). 30 United Nations Department of Global Communications, ‘About Us’: www.un.org/en/sections/ departments/department-global-communications/about-us/index.html; Witness: www.witness.org.

122  Publicity media relations and publicity within the UN, and that there exists an expanding institutional context for engagement with the media. Publicity may assist with legitimacy, but may also damage it. Self-narration and image-making might now be central to the UN and its various agencies, but it matters whose stories are being told, how they are being told and to what end. Otherwise, from a critical perspective, the information bureaucracy of the UN can also be seen as a purveyor of ideology, and even propaganda.31 As I shall examine below in relation to human rights witnessing (and in chapter six), good intentions can lead to bad outcomes and even to human rights violations. A cautionary example of the dangers involved is the violation of a child’s data privacy by the current Under-Secretary-General for Global Communications, Melissa Fleming, when she was Chief Communications Officer at the United Nations High Commissioner for Refugees (UNHCR) in 2019. The violation occurred as Fleming tweeted an older image of a young girl including her name, location and phone number, which was then retweeted to the 2.3 million followers of the UNCHR on Twitter. The tweet was intended to raise awareness of the importance of providing education to young refugees, but in doing so potentially endangered the young girl involved.32 In media coverage of the incident at the time a former UN official critiques the institutional approach to publicity: The UNHCR is a very publicity-hungry organisation. They have been told – just go out there and get publicity. Sometimes the publicity is not well thought-out. I would expect the head of communication to know better than to send this out.33

Public relations and information strategies have taken a wide variety of forms within the UN system. A final example of the integration of such strategies into UN activities concerns the operation of UN peace-keeping and monitoring missions.34 For example, protection for the media, along with actions to encourage media diversity and free speech, are often an essential part of UN transitional administration and peace-keeping operations.35 In all these various initiatives the UN is responding in part to the perception of the media’s significance.36 31 For a detailed earlier study of the UN’s ‘information machine’, and an example of a critical international relations approach to the issue of the media and communication in the study of world order, see Mark D Alleyne, Global Lies? Propaganda, the UN and World Order (New York, Palgrave M ­ acmillan, 2003). 32 Karen McVeigh, ‘UN Communications Chief Under Fire for Tweeting Refugee’s Details’ The  Guardian (3 September 2019), available at www.theguardian.com/global-development/2019/ sep/03/un-communications-chief-under-fire-for-tweeting-refugees-details. 33 ibid. 34 See further Julia Hoffmann and Virgil Hawkins (eds), Communication and Peace: Mapping an Emerging Field (Abingdon, Routledge, 2015). 35 See discussion of UN Mission in Kosovo in Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford, Oxford University Press, 2006) 128. In the case of Kosovo and elsewhere the UN has itself been criticised for a lack of accountability and transparency: Benvenisti, ‘Upholding ­Democracy’ (2018) 26–30. 36 This is not to say that the media’s role will always be successfully pursued. For example, Sarah Joseph has criticised traditional media coverage of the UN Human Rights Universal Periodic

Institutional Publicity  123 The UN reflects, in this respect, a deeper turn to publicity by non-state actors, whether international organisations, NGOs, transnational corporations or activist movements.37 A further example of a contentious organisation responding to this demand for publicity is the WTO. The WTO is a political organisation with in camera negotiations between state actors central to its operations, but it is also a creature of law. The trade regime it establishes includes a dispute settlement system, although currently its ability to function has been tested by the actions of the Trump administration. At its inception WTO dispute settlement followed the arbitral model in establishing relatively secretive procedures.38 Almost from the beginning, however, the Organization faced criticism over transparency.39 The 1999 ‘battle for Seattle’ saw the WTO as the focus for mass protest, and it has remained the object of criticism both from states and civil society actors. This criticism has shaped its response to publicity and to civil society engagement.40 In response, the WTO Information and External Relations Division conducts a variety of publicity and transparency generating initiatives such as an annual public forum. The WTO also boasts an informative and user-friendly website featuring webcasts, introductions to trade law in plain language, and information available for any number of trade topics.41 The website states: ‘The WTO aims to engage with all sections of the community. It encourages open discussion on the WTO, its activities and the trading system’.42 The WTO has an active presence on social media.43 There can be no question but that the WTO has approached the task of public relations and outreach with great intent. The key issue is whether such

Review:  Sarah Joseph, ‘Global Media Coverage of the Universal Periodic Review Process’ in Hilary Charlesworth and Emma Larking (eds), Human Rights and the Universal Periodic Review: Rituals and Ritualism (Cambridge, Cambridge University Press, 2015) 147–66. 37 For an earlier study of the public relations and marketing strategies of activist groups, see ­Clifford Bob, The Marketing of Rebellion: Insurgents, Media, and International Activism (New York, Cambridge University Press, 2005). For an influential constructivist international relations account of transnational advocacy networks see Margaret E Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca, Cornell University Press, 1998). 38 In terms of procedural transparency some hearings have subsequently been opened by consent of the parties. See further: Caroline E Foster, ‘Public Opinion and the Interpretation of the World Trade Organisation’s Agreement on Sanitary and Phytosanitary Measures’ (2008) 11 Journal of International Economic Law 427; World Trade Organization, ‘Appellate Procedures’: www.wto.org/english/tratop_e/ dispu_e/ab_procedures_e.htm. 39 Some of these criticisms focused upon the ‘democratic deficit’ of the WTO’s decision-making processes and criticisms in terms of transparency and participation linger. See further: Sarah Joseph, Blame it on the WTO? A Human Rights Critique (Oxford, Oxford University Press, 2011) ch 3; P ­ anagiotis Delimatsis, ‘Transparency in the WTO’s Decision-Making’ (2014) 27 Leiden Journal of International Law 701. 40 See further Erin Hannah, James Scott and Rorden Wilkinson, ‘Reforming WTO-Civil Society Engagement’ (2017) 16 World Trade Review 427, 429. 41 www.wto.org. 42 World Trade Organization, ‘Community/Forums’: www.wto.org/english/forums_e/forums_e.htm. 43 World Trade Organization, ‘Follow WTO in Social Media’: www.wto.org/english/forums_e/ social_media_e.htm.

124  Publicity activities have actually affected decision-making, influenced policy and empowered citizens. Greater access to information and procedures may affect forms of decision-making, while leaving the substance and underlying economic rationales unchallenged.44 As Panagiotis Delimatsis argues, transparency requires more than publicity; it must also involve participation.45 Despite a broader move to ensure greater accountability for international organisations, similar questions can be asked of other key international institutions involved in the global governance of media.46 ICANN was, until more recent reforms of its governance model, seen by critics as a vehicle for the United States and its interests regarding internet governance. Unsurprisingly for such a controversial body, it has a highly sophisticated web and social media presence.47 The website hosts a blog, a community wiki, an open learning platform, ICANN Learn, and a public comment mechanism.48 And like the WTO it has attempted to respond to criticism in relation to its legitimacy by emphasising public participation and transparency.49 There are regular ICANN public outreach activities such as community forums, public meetings and webinars. This reflects also the multistakeholder model of internet governance which ICANN has adopted and championed, and feeds into the strategic planning processes of the organisation.50 ICANN’s strategic plan for 2021–2025 states: ICANN’s multistakeholder, bottom-up approach to policy development and strategic planning remains rooted in the continued belief that global representation, transparency, and accountability are critical to fulfilling the shared goal of a single, globally interoperable Internet supported by stable, secure, and resilient unique identifier systems.51 44 See for example Anne Orford’s critique in the field of trade law of transparency when it fails to ‘challenge the sacrificial economy established by these trade agreements’: Anne Orford, ‘Trade, Human Rights and the Economy of Sacrifice’ in Anne Orford (ed), International Law and Its Others (Cambridge, Cambridge University Press, 2006) 190, cf 186–90. 45 Delimatsis, ‘Transparency’ (2014) 707. 46 In scholarly terms this has evolved into the influential field of global administrative law: Benedict Kingsbury, Nico Krisch and Richard B Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68 Law and Contemporary Problems 15. For criticism of the lack of visibility to publics of much internet governance see Laura DeNardis, ‘Hidden Levers of Internet Control’ (2012) 15 Information, ­Communication & Society 720, 726. 47 www.icann.org. 48 These and other initiatives are linked at the organisation’s website: www.icann.org. 49 Internet Corporation for Assigned Names and Numbers, ‘Bylaws for Internet Corporation for Assigned Names and Numbers: A California Nonprofit Public-Benefit Corporation’ (adopted by ICANN Board on 27 May 2016) Art 3 esp ss 3.1–3.3, available at www.icann.org/en/system/files/files/ adopted-bylaws-27may16-en.pdf. 50 See earlier discussion in ch 4, this volume. The organisation’s website states: ‘Community participation is a critical component to the strategic planning process in collaboration with the ICANN Board and the ICANN organization. The strategic planning process is designed to ensure continuous participation of the ICANN community throughout the development of the plan. This includes running strategic outlook/trend identification sessions with stakeholder groups, information sharing via webinars, public sessions at ICANN meetings, and public comment opportunities to provide input on the development of the strategic plan’: www.icann.org/resources/pages/strategic-engagement-2013-10-10-en; Internet Corporation for Assigned Names and Numbers, ‘ICANN Strategic Plan for Fiscal Years 2021–2025’, available at www.icann.org/en/system/files/files/strategic-plan-2021-2025-24jun19-en.pdf. 51 Internet Corporation for Assigned Names and Numbers, ‘ICANN Strategic Plan’ (ibid) 4.

Institutional Publicity  125 One of its five strategic objectives for the coming years is to improve the effectiveness of the multistakeholder model of governance for both ICANN and the internet. To achieve this, the organisation has set itself a range of goals to improve public participation, inclusivity and transparency.52 These are important procedural objectives which highlight the role for informed publics in internet governance. They also remind us of the politics involved and the pressure from states and a range of actors in the aftermath of the Snowden revelations. This led the US to relinquish its control over ICANN, but only ‘after ICANN strengthened internal accountability mechanisms to credibly ensure that future regulations will not deviate extensively from former principles’.53 So again we should ask whether the procedural reforms encouraging greater public engagement will lead to different regulatory outcomes for the internet, or simply involve the strategic utilisation of methods of publicity to address the political problems ICANN faces in terms of its lack of legitimacy.54 A final example here is the ITU which is, as examined in chapter four, involved in the regulation of telecommunications and in aspects of internet governance. The organisation has a website and social media presence.55 Its website contains a ‘Media Centre’ and also includes interactive reports on topics such as digital development.56 The ITU produces its own media content, such as podcasts on contemporary topics and strategic themes.57 The organisation is involved in a range of outreach activities including the WSIS forums which seek to extend the World Summit on the Information Society’s ‘ICT for development’ agenda in collaboration with a range of other stakeholders.58 These efforts at public engagement have not, however, placed the wider participation of informed publics at the heart of the ITU’s governance. The ITU engages in what are clearly now standard practices of publicity, but remains a public–private partnership of states, a range of private entities and academic institutions. Publicity is a tool for generating public participation, but these various international organisations will be strengthened only when they are themselves informed by publics. In the next section I move to the case study of international criminal law. In international criminal courts and

52 ibid 14–17. 53 Manuel Becker, ‘When Public Principals Give Up Control Over Private Agents: The New Independence of ICANN in Internet Governance’ (2019) 13 Regulation & Governance 561, 573. 54 The significance of public participation in internet governance is emphasised in Rolf H Weber, ‘International Governance in a New Media Environment’ in Monroe E Price, Stefaan Verhulst and Libby Morgan (eds), Routledge Handbook of Media Law (Abingdon, Routledge, 2013) 367–68. See also the emphasis upon the responsibilities of international organisations to ensure access and participation in internet governance processes in David Kaye, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc A/HRC/32/38 (11 May 2016) para 91. 55 www.itu.int; www.itu.int/en/Pages/social-media.aspx. 56 International Telecommunication Union, ‘Facts and Figures 2019: Measuring Digital Development’, available at itu.foleon.com/itu/measuring-digital-development/home. 57 soundcloud.com/ituproduction. 58 See for example www.itu.int/net4/wsis/forum/2020.

126  Publicity tribunals the turn to publicity has involved the evidentiary use of media alongside efforts to mediatize trials and engage in other forms of outreach.59

II.  International Criminal Law One international court which has from the beginning embraced the technique of publicity is the International Criminal Court (ICC). The ICC partly owes its existence to media campaigns and sees itself as serving a much more explicitly pedagogical role than other international courts and tribunals. This may also be linked to the opportunities that have come with technological changes. The advent of television and now digital media platforms have prompted widespread reconsideration of how judicial functions should relate to the media. This is a critical issue for international criminal tribunals, which have been charged with the delivery of remote justice to the few.60 For all the benefits of open justice, outreach and media work by the courts and tribunals have sometimes been used as a stopgap measure to overcome criticisms of remoteness.61 Immi Tallgren contends that the ICC is presented as a creature of public opinion and new forms of mediated publicity.62 Christine Schwöbel has taken this further, linking what she describes as the marketing culture of international criminal law with broader processes of growth and branding associated with neoliberalism.63 The engagement of international criminal law with media outreach can be traced back to the International Military Tribunal at Nuremberg. Considerable media attention was directed to the war crimes trials. US prosecutor Telford Taylor recalls that press coverage came from ‘more than twenty nations’, and although accommodation at the Faber Castle where the journalists stayed was cramped, the press were well provided for in the architecture of the court.64 Nevertheless, Taylor remained fearful of the ‘justice as media spectacle’ charge and was somewhat defensive about negative press coverage of the American prosecution team at the time.65 59 See discussion of the focus on outreach, education and media in Immi Tallgren, ‘The Voice of the International: Who is Speaking?’ (2015) 13 Journal of International Criminal Justice 135, 147–48. 60 For an early reference in the literature to the role played by websites and the media, see Immi Tallgren, ‘The Sensibility and Sense of International Criminal Law’ (2002) 13 European Journal of International Law 561, 584. See more generally Olga Kavran, ‘International Criminal Courts and the Right to Information’ (2017) 15 Journal of International Criminal Justice 953. 61 Eric Stover, The Witnesses: War Crimes and the Promise of Justice in the Hague (Philadelphia, University of Pennsylvania Press, 2005) 144. 62 Tallgren, ‘The Voice of the International’ (2015) 147. 63 Christine Schwöbel, ‘The Market and Marketing Culture of International Criminal Law’ in ­Christine Schwöbel (ed), Critical Approaches to International Criminal Law: An Introduction ­(Abingdon, ­Routledge, 2014) 264–80. See also Sophie Rigney, ‘Postcard from the ICTY’ in Jessie Hohmann and Daniel Joyce (eds), International Law’s Objects (Oxford, Oxford University Press, 2018) 368–69. 64 Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (London, Bloomsbury, 1993) 220. 65 ibid.

International Criminal Law  127 Publicity in the form of media engagement and outreach remains highly s­ ignificant in the contemporary practice of international criminal law.66 Indeed, films – both documentary and fictional – have become important vehicles for promoting international justice and the work of international criminal courts and tribunals.67 At the ICC outreach now forms a significant component of the Court’s activities.68 The ICC website has sophisticated and user-friendly links to outreach activities, and all press releases are available and archived along with audiovisual material.69 The Court’s website links to the ICC’s digital media activities on ­Facebook, Instagram, Twitter, YouTube, Flickr and Tumblr, with available shareable media suitable for social media engagement and advocacy. The ICC has also experimented with Facebook and Twitter campaigns, and with blogging as a platform through which to perform outreach.70 Proceedings and press conferences are webstreamed live as well as archived.71 The website reflects the significance of media to the operation of the Court, stating: ‘Transparency and accountability are cornerstones of the ICC. While protecting the integrity of judicial proceedings, the Court must make its activities public and accessible. The role of journalists worldwide is vital in this process’.72 Such efforts are, in part, also a response to perceptions of inadequate outreach on the part of the ad hoc international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR).73 International criminal law is vulnerable to charges 66 Recent scholarship by Barrie Sander examines this communicative character of international criminal law through the lens of a broader ‘expressive turn’ within the field: Barrie Sander, ‘The Expressive Turn of International Criminal Justice: A Field in Search of Meaning’ (2019) 32 Leiden Journal of International Law 851. 67 Daniel Joyce and Gabrielle Simm, ‘Zero Dark Thirty: International law, Film and Representation’ (2015) 3 London Review of International Law 295; Wouter G Werner, ‘Justice on Screen: A Study of Four Advocacy Documentary Films’ (2016) 29 Leiden Journal of International Law 1043; Wouter G Werner, ‘“We Cannot Allow Ourselves to Imagine What it All Means”: Documentary Practices and the International Criminal Court’ (2014) 76 Law and Contemporary Problems 319. 68 See International Criminal Court, ‘Interacting with Communities Affected by Crimes’: www.icccpi.int/about/interacting-with-communities; International Criminal Court, ‘Reporting on the ICC: A Practical Guide for the Media’: www.icc-cpi.int/iccdocs/PIDS/docs/2017_Journalist_Guide_ENG.pdf. 69 See for example www.icc-cpi.int/news. 70 International Criminal Court, ‘ICC Launches #justicematters Facebook Campaign and Outreach Blog to Commemorate 17 July, the Day of International Criminal Justice’ (Press Release, ICC-CPI20150706-PR1128, 6 July 2015), available at www.icc-cpi.int/Pages/item.aspx?name=pr1128. 71 International Criminal court, ‘Watch ICC Hearings’: player.cdn.tv1.eu/statics/66005/icc.html. 72 International Criminal Court, ‘Media and the ICC’: www.icc-cpi.int/get-involved/Pages/media. aspx. 73 See for example the critical film on the failures of ICTY outreach: Justice Unseen (Aldin Arnautović and Refik Hodžić, XY Films, 2004). See also Thomas Verfuss, ‘Trying Poor Countries’ Crimes in a Rich City: The Problems of the Press from the Former Yugoslavia’ (2004) 2 Journal of International Criminal Justice 509; Kingsley Chiedu Moghalu, ‘Image and Reality of War Crimes Justice: External Perceptions of the International Criminal Tribunal for Rwanda’ (2002) 26 The Fletcher Forum of World Affairs 21; Janine Natalya Clark, ‘International War Crimes Tribunals and the Challenge of Outreach’ (2009) 9 International Criminal Law Review 99; Mirko Klarin, ‘The Impact of the ICTY Trials on Public Opinion in the Former Yugoslavia’ (2009) 7 Journal of International Criminal Justice 89; Marlise Simons, ‘International Criminal Tribunals and the Media’ (2009) 7 Journal of International Criminal Justice 83; Office of the Prosecutor, ‘Outreach’, ICC Forum, available at iccforum.com/outreach; Matias Hellman,

128  Publicity of cliché and rhetoric, and outreach activities by the ICTY and ICTR, when they did occur, were seen by critics as insensitive and lacking follow-through. This reflects the experimental nature of the field of international criminal law and its rapid development. It also reflects the earlier view in some sections of the international legal community that the media was more a nuisance than a resource, and also potentially damaging to the rule of law. Eric Stover suggests that the ICTY’s initial approach to outreach was flawed and that ‘the tribunal was both seriously misunderstood and misrepresented among the very people it was trying to serve’.74 Further criticism has flowed from the potential for international criminal trials to err towards the spectacular in engaging with media forms and narrative power.75 A focus on spectacle draws the media’s threat to process and systemic integrity into view. The media can be seen to provide transparency on the one hand, but to do so at the cost of procedural fairness on the other. Here the pedagogical function of international criminal trials operates in tension with the rights of the accused to a fair trial. Gerry Simpson compares and contrasts war crimes trials with ‘show trials’, finding both differences and commonalities. He concludes that it might be more productive to approach them as spectacles in which the machinery and symbolism of the show trial is sometimes visible and in which the legitimation strategies and imperatives of the prosecuting state or community are a key purpose or effect of the trial.76

In the present day, the media (including social media) has a pivotal role in this spectacularised genre of international justice. If we look at the modern history of international criminal law, we find that despite ongoing concerns regarding spectacle, media coverage and evidence have always been ingredients. At Nuremberg, Taylor referred to the ‘problem of bringing the Germans into the audience of the trial itself ’.77 He writes that US chief prosecutor Robert H J­ackson initially focused on the world stage, but with time came to see that German media coverage was essential to the success of the trials in the long term. The problem was that the German population remained very distrustful of the media after the experience of Nazi newspapers.78

‘Challenges and Limitations of Outreach: From the ICTY to the ICC’ in Christian De Vos, Sara Kendall and Carsten Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Court Interventions (Cambridge, Cambridge University Press, 2015) 251–71. 74 Stover, The Witnesses (2005) 37–38. 75 See further Martti Koskenniemi, ‘Between Impunity and Show Trials’ (2002) 6 Max Planck Yearbook of United Nations Law 1, 25, 35; Philip Allott, The Health of Nations: Society and Law Beyond the State (Cambridge, Cambridge University Press, 2002) 67. 76 Gerry Simpson, Law, War and Crime: War Crimes, Trials and the Reinvention of International Law (Cambridge, Polity Press, 2007) 111. 77 Taylor, The Anatomy of the Nuremberg Trials (1993) 233. 78 ibid 233–34.

International Criminal Law  129 Though largely reliant on the archive for proof, visual media evidence was also used at Nuremberg. An important example here is the screening of film footage of Nazi atrocities, which had a profound impact on the trials.79 Stover writes that ‘many observers, including members of the prosecution, later questioned the film’s probative value … Still, there is little question that the film helped establish that high-level Nazi officials were responsible for heinous crimes’.80 Susan Sontag reminds us of the linkage between the visual and international justice when she writes that ‘the very notion of atrocity, of war crime, is associated with the expectation of photographic evidence’.81 But the use of film and other visual media in international criminal law leads to the criticism of international trials as cathartic spectacle, rather than authentic justice. While describing the impact of the footage on some of the defendants as ‘stunning’, Taylor is keen to emphasise that it did not have a strong evidentiary weight in the determination of guilt: ‘The public showing of the film certainly hardened sentiment against the defendants generally, but it contributed little to the determination of their individual guilt’.82 Again, the concern is that mediatization of trials may both contribute to and damage perceptions of their legitimacy. Wendy Hesford argues that the subsequent Eichmann trial in Israel ‘marked a turning point in the history of human rights representation through the symbolic power attributed to the transnational act of bearing witness’.83 And again the role of the media was significant.84 Hannah Arendt’s essay on the trial – itself originally a series of reports for the New Yorker magazine – criticised the process for being excessively focused on nation-building and distracted by the demands of victims: The purpose of a trial is to render justice, and nothing else; even the noblest of ulterior purposes … can only detract from the law’s main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment.85

79 ibid 186–87, 200, 316. For further discussion see Koskenniemi, ‘Between Impunity and Show Trials’ (2002) 21–22 (here Koskenniemi discusses the film’s subsequent use in the Eichmann trial where it was given a different political context); Susan Twist, ‘Evidence of Atrocities or Atrocious Use of Evidence: The Controversial Use of Atrocity Film at Nuremberg’ (2005) 26 Liverpool Law Review 267. See further Christian Delage, Caught on Camera: Film in the Courtroom from the Nuremberg Trials to the Trials of the Khmer Rouge (Ralph Schoolcraft and Mary Byrd Kelly eds and trs, Philadelphia, University of Pennsylvania Press, 2014) ch 6. 80 Stover (n 61) 20. 81 Susan Sontag, Regarding the Pain of Others (New York, Farrar, Straus and Giroux, 2003) 74. 82 Taylor (n 64) 187. 83 Wendy S Hesford, Spectacular Rhetorics: Human Rights Visions, Recognitions, Feminisms (Durham, Duke University Press, 2011) 53. 84 See further Shoshana Felman, ‘Theaters of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust’ (2001) 27 Critical Inquiry 201; ­Marianna Torgovnick, ‘A Response to Shoshana Felman’ (2002) 28 Critical Inquiry 780; Shoshana Felman, ‘A Response to Marianna Torgovnick’ (2002) 28 Critical Inquiry 785; Hesford (ibid) 53–54. 85 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, rev edn (New York, Penguin Books, 1994) 253.

130  Publicity But despite the dangers that witness testimony would overwhelm due process and foster spectacular forms of justice, it does seem that Arendt’s critique came too late. Witnesses, media reports of trials and the broader narrative demands of international criminal justice were here to stay.86 Contemporary international criminal law relies upon media to generate not only evidence but also the publicity it needs in order to function.87 For instance, there are indications that the media has been important in shaping not only the socio-historical narrative which underscores the international criminal justice mandates relating to the former Yugoslavia and Rwanda, but also the imagery which structures the whole field of international criminal law.88 So we can see the complexity of media influence, on the one hand helping to establish facts and on the other hand providing the imagery necessary to communicate, publicise and render those facts legible to global and domestic publics. Whilst in its earlier stages of development such anxiety regarding spectacle was clear, now the position is more ambivalent and the role of publicity in international criminal law aligns with the broader way in which its contemporary practitioners see visibility as a core concern. Indeed, current chief prosecutor Fatou Bensouda remarked in 2016 that ‘This is the promise [of the ICC] … that the victims of atrocity crimes will see that justice is done’.89 Christine Schwöbel-Patel connects the spectacular in international criminal law with the ‘fundraising image of victimhood’.90 This in turn connects international criminal law with ‘the sensationalism of a competitive media economy’.91 But spectacle has become the new norm in the attention-driven digital media economy and consequently its educational power risks being devalued.92 This is likely to have contradictory effects on audiences and in the process can contribute to the silencing of victims and to the commodification of their suffering.93 These over-simplified narrative constructions help to shape the image of international justice more broadly and can also be seen in human rights advocacy and witnessing.

86 Stover (n 61) 21. 87 See for example an ICC case involving social media evidence: Prosecutor v Mahmoud Mustafa Busayf Al-Werfalli (Public Warrant of Arrest) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/11-01/17, 15 August 2017). For discussion of the broader use of digital forms of evidence and witnessing see: Sam Dubberley, Alexa Koenig and Daragh Murray (eds), Digital Witness: Using Open Source Information for Human Rights Investigation, Documentation, and Accountability (Oxford, Oxford University Press, 2020); Alexa Koenig, ‘“Half the Truth is Often a Great Lie”: Deep Fakes, Open Source Information, and International Law’ (2019) 113 AJIL Unbound 250. 88 Christine Schwöbel-Patel and Wouter Werner, ‘Screen’ in Jessie Hohmann and Daniel Joyce (eds), International Law’s Objects (Oxford, Oxford University Press, 2018) 424–25. 89 ‘The International Criminal Court on Trial: A Conversation with Fatou Bensouda’ Foreign Affairs (12 December 2016), available at www.foreignaffairs.com/interviews/2016-12-12/internationalcriminal-court-trial. Emphasis added. 90 Christine Schwöbel-Patel, ‘Spectacle in International Criminal Law: The Fundraising Image of Victimhood’ (2016) 4 London Review of International Law 247. 91 ibid 263. 92 ibid 264–66. 93 ibid 268–72. These themes will be explored further in ch 6, this volume.

Human Rights and Witnessing  131

III.  Human Rights and Witnessing Despite rising concerns regarding digital methods of misinformation, in some quarters of the international human rights community an earlier optimism about internet freedom remains. Indeed, mediated advocacy and protest are configured as ways to counter authoritarianism and to make the ongoing case for internationalism in its varied forms.94 For example, much of contemporary human rights practice and advocacy is premised on digitally mediated forms of fact-finding, naming and shaming, which are claimed to increase the normative reach of international law, assist with compliance, widen levels of participation and even to affect social and political change.95 In contemporary human rights practice to bear witness is said to involve acknowledgment of another’s suffering or a situation of injustice. But knowledge does not always translate to acknowledgement and witnessing by itself can also act to distance the suffering of others.96 An ongoing criticism of media witnessing is simply that it fails to translate into meaningful action or remedy. There is always the danger that witnessing merely fulfils a desire to help or be seen to help, without addressing underlying problems structurally.97 It may also obscure other forms of action and alleviate our own sense of responsibility or continuing discomfort. The mediatization of human rights witnessing and advocacy can signal authority over a situation rather than admission of responsibility or deeper forms of engagement. It clearly carries many benefits and plays an important role in the co-ordination of informed publics, but there are problems associated with the commodified forms mediatization takes in an era of digital media spectacle, which I will continue to examine in chapter six. In the international human rights framework naming and shaming has long been an important enforcement tool. Whilst at times human rights investigations remain confidential to ensure state participation and to protect victim privacy, the pull of publicity is strong and central to the contemporary practice of human rights. These forms of mediatization carry dangers of simplification and distortion,

94 Daniel Joyce, ‘Liberal Internationalism’, in Anne Orford and Florian Hoffmann (eds), The Oxford Handbook of the Theory of International Law (Oxford, Oxford University Press, 2016) 486–87. 95 Sarah Joseph, ‘Social Media, Political Change, and Human Rights’ (2012) 35 Boston College International & Comparative Law Review 145; Philip Alston and Colin Gillespie, ‘Global Human Rights Monitoring, New Technologies, and the Politics of Information’ (2012) 23 European Journal of International Law 1089; Zizi Papacharissi, Affective Publics: Sentiment, Technology and Politics (Oxford, Oxford University Press, 2015); Lilie Chouliaraki, ‘Digital Witnessing in Conflict Zones: The Politics of Remediation’ (2015) 18 Information, Communication & Society 1362. 96 Sontag, Pain of Others (2003); Stanley Cohen, States of Denial: Knowing About Atrocities and Suffering (Cambridge, Polity Press, 2001); Luc Boltanski, Distant Suffering: Morality, Media and Politics (Cambridge, Cambridge University Press, 1999). 97 Cohen (ibid) 167. For a revealing case study see Charlotte Peevers, ‘USAID Rice – Haiti’ in Jessie Hohmann and Daniel Joyce (eds), International Law’s Objects (Oxford, Oxford University Press, 2018) 515–28.

132  Publicity but can also provide important channels for information and knowledge within the international system. The informational role for media in this way is highly significant and may lead to further investigation, the generation of probative evidence and even prosecution or redress. But it can also be distorted when NGOs and international institutions such as the UN and its agencies must constantly compete for the attention of states and citizens in efforts to generate support and sometimes simply to fundraise. Nevertheless, this media witnessing role has triggered many significant, though not always successful, responses to human rights crises and situations. Historical examples include humanitarian outrages such as the bombing of Guernica during the Spanish Civil War, reporting of the discovery of the death camps at the end of the Second World War, the expose of the My Lai massacre in the Vietnam War, and coverage of the Biafran War and Ethiopian Famine. More recently much has been made of the impact of social media in assisting the coordination of advocacy and activism directed to social and political change in the Arab Spring, the Syrian Civil War or in the contemporary #metoo movement.98 But social media witnessing has also been called into question, and here it is useful to consider a paradigmatic example of its failure: the Kony 2012 campaign. On 5 March 2012, an NGO called Invisible Children uploaded to YouTube a video titled ‘Kony 2012’.99 The video went viral – it was watched over 30 million times in 48 hours – and it was shared across popular social media platforms including Facebook and Twitter.100 The film called for the capture and arrest of the leader of the Lord’s Resistance Army (LRA), Joseph Kony, by the end of 2012. It addressed the LRA’s involvement in the forced recruitment of child soldiers and further serious human rights violations. The purpose of the video was to engage the American people to place pressure on their government to maintain the presence of military advisors in Uganda to assist the Ugandan army in its efforts to capture Kony. The film claims, ‘The problem is 99% of the planet doesn’t know who he is. If they knew, Kony would have been stopped long ago’. The methodological assumption is that sharing knowledge and awareness via a social media campaign and film will result in meaningful political action and create a community of committed activists. In this way Kony 2012 adopts some traditional human rights advocacy and filmic techniques and adjusts them to the digital media environment.

98 Joseph, ‘Social Media’ (2012) 157–67; Nadia Khomami, ‘#MeToo: How a Hashtag Became a ­Rallying Cry Against Sexual Harassment’ The Guardian (21 October 2017), available at www.theguardian.com/world/2017/oct/20/women-worldwide-use-hashtag-metoo-against-sexual-harassment; Vivian Yee and Hwaida Saad, ‘War Zone Stories, Liberated via Social Networking’ The New York Times (9 October 2019), available at www.nytimes.com/2019/10/09/technology/personaltech/social-media-war. html. 99 Invisible Children, ‘Kony 2012’ (2012), available at invisiblechildren.com/kony-2012. 100 Josh Halliday, ‘Kony 2012 Documentary on Ugandan Warlord is Unlikely Viral Phenomenon’ The Guardian (8 March 2012), available at www.guardian.co.uk/world/2012/mar/08/kony-2012-josephrao-kony.

Human Rights and Witnessing  133 The video begins with a lofty, liberal internationalist statement about the power of social media and the interconnectivity of contemporary society. But rather than overwhelming viewers with the scale of children’s suffering, the film adopts the individual perspective of the film-maker. The focus is on the narrator’s own child and his involvement with Invisible Children, as well as the story of a single former LRA child soldier called Jacob, whom he had met in Africa. Included is an interview with Luis Moreno Ocampo, the former chief prosecutor in the ICC. The film explains that Joseph Kony was the first person to be indicted by the ICC, but little detail is provided about the ICC, its procedures and politics. Ocampo embraces the digital media optimism of the time and declares that ‘we are living in a new world, [a] Facebook world’. A commercial social media platform is thereby positioned as formative of international community and as central to the work of humanitarianism. The human rights activism underpinning the film is structured by publicity as the principal means of humanitarian action. The simple idea is to leverage social media networks, combined with postering, protest, lobbying and fundraising, in order to make Kony famous. The broader assumption is that celebrity-driven popular culture can be harnessed to do the work of international criminal justice. Where humanitarianism has often relied on celebrity advocates and branding, the twist here is that an international criminal will be made a celebrity in order for his arrest to occur.101 Ocampo does not miss the opportunity to market his institution and publicise himself in the process. The attention economy demands engagement with this mediated form of promotion. Ocampo’s attempt to boost the political prospects of the ICC with the film’s US domestic audiences is clear, but in doing so he also gives Facebook a free public endorsement. Soon after the video emerged, so too did a blog entitled ‘Visible Children’.102 The first post offered a powerful critique of the clicktivism underlying Kony 2012 and Invisible Children: ‘Is awareness good? Yes. But these problems are highly complex, not one-dimensional and, frankly, aren’t of the nature that can be solved by postering, film-making and changing your Facebook profile picture’.103 On  5  April  2012, a second video was posted on YouTube entitled ‘Kony2012: Part II – Beyond Famous’.104 It attempts to address some of the criticism levelled at the first video, acknowledging the broader context of the LRA’s activities in Central Africa. In it, less emphasis is placed on the previously proposed course of action for bringing Joseph Kony to justice in the ICC. Rather, the video advocates 101 On celebrity humanitarianism see: Ilan Kapoor, Celebrity Humanitarianism: The Ideology of Global Charity (Abingdon, Routledge, 2013); Alexandra Cosima Budabin and Lisa Ann Richey, ‘Advocacy Narratives and Celebrity Engagement: The Case of Ben Affleck in Congo’ (2018) 40 Human Rights Quarterly 260. 102 See visiblechildren.tumblr.com. 103 Grant Oyston, ‘We Got Trouble’ Visible Children (7 March 2012), available at visiblechildren. tumblr.com/post/18890947431/we-got-trouble. 104 Invisible Children, ‘KONY 2012: Part II – Beyond Famous’ (5 April 2012), available at www. youtube.com/watch?v=c_Ue6REkeTA.

134  Publicity for strengthening the ongoing efforts of the African Union and state governments to capture and arrest the LRA leadership, and various practical measures are canvassed. In order to strengthen those efforts, the video suggests that we must make it known to our governments that this is an issue we care about – ‘your voice changes everything’. This response can be understood as an attempt at mitigation and co-option of the critique of Kony 2012, a familiar public relations strategy. This deflection of criticism involves two dimensions: an appeal to a techno-libertarian consumerist belief in digital media’s ability to empower the self; and also a direct fundraising and membership appeal for Invisible Children. With hindsight further criticisms of the digital media campaign can be made. The film simplified a very complex political situation and did not achieve its aims. Indeed, despite the confident claims of the video, the institutional capacity of the ICC and its political authority remain in question. The campaign was an experiment which generated a good deal of attention and self-reflection in the human rights community. It also lifted the profile of Invisible Children and raised significant income for the previously obscure organisation, but to what end?105 Kony’s brief moment of online celebrity did not lead to his arrest, and in many ways simply underscored the political and practical challenges faced by human rights advocates. In fact, subsequently this episode has come to represent the superficiality and hubris of much digital media witnessing. Publicity generated a form of digital media witnessing, but this failed to translate to an international criminal prosecution. The campaign thus neatly illustrates the strengths and weaknesses involved with this mediated form of international legal response. For example, Christine Schwöbel-Patel and Wouter Werner note that in fact ‘the film was largely unavailable to the people in Northern Uganda, who mostly lacked access to the Internet’ which meant that the broader effort to ‘create co-presence between the viewers of the film and those represented in the film effectively excluded the latter’.106 The simple material reality of the digital divide rendered a core dimension of the digital witnessing campaign ineffective. Even where such obstacles can be overcome, deeper forms of connection are much harder to sustain. Temporality is a challenge too given brief attention spans, when often sustained and multidimensional solutions are required. Nevertheless, Sam Gregory, who with the NGO Witness has championed the use of film in human rights advocacy, urges us to consider the potential of such an exercise.107 The lesson to be learned for Gregory is to consider more fully the need for ‘drillability’ or greater depth of message alongside the films obvious merits in terms of ‘spreadability’.108 The question remains, however, whether this 105 Joel R Pruce and Alexandra Cosima Budabin, ‘Beyond Naming and Shaming: New Modalities of Information Politics in Human Rights’ (2016) 15 Journal of Human Rights 408, 408–09. 106 Schwöbel-Patel and Werner, ‘Screen’ (2018) 425. 107 The credo of Witness is neatly summarised ‘See It, Film It, Change It’: www.witness.org. 108 Sam Gregory, ‘Kony 2012 Through a Prism of Video Advocacy Practices and Trends’ (2012) 4 ­Journal of Human Rights Practice 463, 466. Others have claimed that the ‘strategic logic’ underpinning

Human Rights and Witnessing  135 format, including its reliance on social media, can offer the level of engagement required. As Hesford reflects, ‘Human rights defenders fight for international recognition and visibility in a global marketplace that tends to recast structural inequalities, social injustices, and state violence as scenes of individual trauma and victimization’.109 Here Samuel Moyn draws attention to the ‘informational politics’ involved in human rights advocacy, which bring the charge of superficiality and draw attention away from what he contests would be a more constructive focus on ‘economic relations’ and associated questions of inequality.110 In addition to the problems associated with individuation in human rights framing there is the very real danger that social media can be deployed in direct violation of human rights and to incite violence. Indeed, terrorist groups have been amongst those most successful at co-opting digital technology to help communicate and shape their message and political concerns, and authoritarian governments are increasingly adept at using these tools for repression and surveillance. The digital media propaganda of ISIS with its perversion of social media platforms to recruit, co-ordinate, enact and extend its hatred, incitement and violence, is but one of many notorious examples.111 In response, social media companies have attempted to ban terrorist organisations from their platforms, but the problem persists.112 There are also significant privacy and data protection concerns involved with the digital mediatization of human rights suffering and advocacy.113 The danger being that to protect human rights through a communicative framework can come at the cost of violating other human rights, some associated directly with the communicative capitalism model of social media platforms. As will be clearer in chapter six, the individuation involved in this form of human rights advocacy is intensified by the increasing reliance upon platforms as informational infrastructure. It turns out that nothing on Facebook is for free. The social media ecosystem is built upon a data-extractive advertising model with profit at its centre and public

the campaign ‘forecasts a sea change in the practice of human rights advocacy, in which traditional strategies are subverted for the promise of publicity and popularity’: Pruce and Budabin, ‘Beyond Naming and Shaming’ (2016) 409. 109 Hesford, Spectacular Rhetorics (2011) 29. 110 Samuel Moyn, ‘A Powerless Companion: Human Rights in the Age of Neoliberalism’ (2014) 77 Law and Contemporary Problems 147, 155–60. 111 Faisal Irshaid, ‘How Isis is Spreading its Message Online’ BBC News (19 June 2014), available at www.bbc.com/news/world-middle-east-27912569; Emerson T Brooking and PW Singer, ‘War Goes Viral: How Social Media is Being Weaponized Across the World’ The Atlantic (November 2016), available at www.theatlantic.com/magazine/archive/2016/11/war-goes-viral/501125; Antonia Ward, ‘ISIS’s Use of Social Media Still Poses a Threat to Stability in the Middle East and Africa’ Georgetown Security Studies Review (10 December 2018), available at georgetownsecuritystudiesreview.org/2018/12/10/ isiss-use-of-social-media-still-poses-a-threat-to-stability-in-the-middle-east-and-africa. 112 Sheera Frenkel and Ben Hubbard, ‘After Social Media Bans, Militant Groups Found Ways to Remain’ The New York Times (19 April 2019), available at www.nytimes.com/2019/04/19/technology/ terrorist-groups-social-media.html. 113 Evgeny Morozov, The Net Delusion: How Not to Liberate the World (London, Allen Lane, 2011) 270–74.

136  Publicity values useful only in so far as they align with a corporate branding ­strategy. For example, in the wake of the Cambridge Analytica scandal, and in a bid to stem the damage to its own brand and business, Facebook cynically engaged in a traditional advertising campaign on bus shelters with slogans such as ‘fake news is not your friend’.114 These efforts at corporate spin were subsequently adjusted by activists with the telling addition of provocations such as ‘it’s a great revenue source’ and ‘it’s our business model’.115 Another potential danger of digital media witnessing is the tracking of human rights activists through their online interactions, although the use of encryption technologies may offer a layer of protection.116 Similarly, social media posts enable direct citizen reporting on and documentation of conflicts and human rights violations, but may also make it possible for activists and NGOs to be targeted by perpetrators, including states. Here, again, anonymity can be used for good, but also to avoid scrutiny on the dark web, reminding us of the challenges in addressing offensive speech as examined in chapter three. At one extreme, digital media witnessing can even be complicit with human rights violation. An exemplary case is the mediatization of torture at Abu Ghraib generating images which have become iconic and which continue to unsettle any official narratives regarding the justification of the invasion of Iraq in humanitarian terms. The defining media event of the Iraq conflict in 2003 was the publication of photographs of Iraqi prisoners taken in humiliating and degrading contexts by US prison guards at the Abu Ghraib prison in Baghdad. Many of the photographs of the prisoners were sexually explicit and featured grinning American captors mistreating their prisoners. The images spread virally online and throughout the world’s media and have become grisly icons for the false promises made by those in the US and elsewhere who called for humanitarian intervention in the Middle East. This has also led to vigorous debate about the practice of torture and the limits of international law.

114 Nitasha Tiku argues that the ad was a calculated effort to win back consumer trust, but did not constitute an apology: ‘The ad frames issues like “fake news” and “data misuse” as assaults that somehow “happened,” but doesn’t address Facebook’s responsibility. Then, Facebook reassures users that it will do better job of protecting user privacy “from now on.”’ Nitasha Tiku, ‘Facebook Launches a New Ad Campaign With an Old Message’ Wired (26 April 2018), available at www.wired.com/story/ facebook-launches-a-new-ad-campaign-with-an-old-message/. 115 Kurt Schlosser, ‘What’s Fake and What’s Real? Altered Billboards Challenge Facebook’s Version of the Truth’ GeekWire (20 August 2018), available at www.geekwire.com/2018/whats-fake-whats-realaltered-billboards-challenge-facebooks-version-truth. 116 One example is the Onion Router with its mission: ‘To advance human rights and freedoms by creating and deploying free and open source anonymity and privacy technologies, supporting their unrestricted availability and use, and furthering their scientific and popular understanding.’ See further www.torproject.org. See also Office of the United Nations High Commissioner for Human Rights, ‘Mandate of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression: Encryption and Anonymity Follow-Up Report’ (Research Paper 1/2018, June 2018), available at www.ohchr.org/Documents/Issues/Opinion/EncryptionAnonymityFollowUpReport.pdf.

Summary  137 Abu Ghraib remains a significant early example of the imbrication of international law and the media in the context of the internet and the turn to the visual within emerging forms of digital media. It powerfully illustrated that a media event could be generated by amateurs influenced by popular culture, translated through old and digital media filters, and received and interpreted by a range of audiences in diverse contexts. The infamous pictures constituted both violation and indictment, mobilising international legal argument, and triggering actions by and against the US administration. Further media investigation also suggests that those who took the photos may, in part, have done so to record their protest at what was occurring and due to a pervasive unease with what was happening.117 In his examination of the history and development of the public execution with its ritualised audiences, Foucault writes of the ‘ambiguous’ role of the people and their right to witness, a right which in a sense could act also as a check on abuse of power.118 Perhaps the spread of the images from Abu Ghraib should be understood as a return to the ritualised form of public spectatorship of torture – a form of spectatorship that makes the audience both outraged and aware of our own complicity in degrading the victims. Abu Ghraib illustrates that the media is both implicated in the degradation of victims and a vehicle to ensure compliance and public engagement. But we might also view the spectacle involved as generating a productive critical challenge to any simple equation of publicity with justice or legitimacy. Indeed, as the lingering example of Abu Ghraib suggests, we are in fact often both spectators and participants and should continue to challenge rather than accept ‘the opposition between viewing and acting’.119

IV. Summary Moves to engage global audiences through the media are closely connected to international law’s ongoing quest for legitimacy. In taking on media forms and engaging in public relations, the international legal system is responding to demands for greater transparency, accountability and participation. Linked to this, there is the charge that publicity does not actually enhance access or promote inclusion, but rather leads to pacification, commodification and ‘dumbing down’ – that it forms part of a broader framework for the manipulation of information in order to consolidate power. Hence, a significant strand of criticism focuses on the ways in which the concept of a global public in the form of ‘the international community’ is deployed to legitimate the interests of the powerful. Something

117 Philip Gourevitch and Errol Morris, Standard Operating Procedure: A War Story (London, Picador, 2008). 118 Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan tr, London, Penguin Books, 1977) 58. 119 Jacques Rancière, The Emancipated Spectator (Gregory Elliot tr, London, Verso, 2009) 13.

138  Publicity similar is in play when international organisations faced with criticism concerning their legitimacy turn to mediatization as a tool for reputation management. Procedural reforms and practical measures involving outreach and a digital media presence are to be welcomed, but we should not lose sight of the disconnect that can remain between marketing claims to transparency and deeper forms of public engagement in global governance structures. Publicity cannot act as a substitute for informed publics who are so often kept at a distance from the levers of institutional power and influence. Contemporary debates have focused attention on the ways in which information flows are both vital and dangerous, on the promise of connectivity as well as on the digital divide, on the echo chamber quality of some forms of digital media, and also their misuse in terms of propaganda, manipulation and ‘fake news’. Can digital media create forms of participation which will breathe new life into the ‘international community’, or is it more likely, as many fear, to result in information overload, manipulation and distracting spectacle? In the background of this debate are both the descriptive question of what kind of international community (if any) we have and the normative question of what kind of international community we should strive for. Important criticism of the international legal system levels the charge that the descriptive question is rarely asked, and instead an international community is often assumed or at worst imposed. The struggle for answers to both kinds of questions presupposes an appreciation of the media’s role (including increasingly through emergent digital platforms), a greater awareness of underlying processes of mediatization and of the diversity and disenfranchisement of global publics for international law.

6 The Critique of Publicity In chapter five we examined the deployment of mediated techniques of publicity by international legal actors and institutions to claim legitimacy and signal authority. I began to explore the critique of such practices in relation to two exemplars of mediatization, international criminal justice and international human rights. In this chapter I deepen that critique of publicity and, by reference to the scholarship of Jodi Dean and Alice Marwick, reveal the communicative capitalism underpinning the mediatization of international law and its increasingly digital form. This endangers international law’s public character and, given the dominant role of digital media platforms, is resulting in private monopoly over global communicative infrastructures. Contemporary concerns regarding disinformation, algorithms and social fragmentation co-exist with the reality of digital media convergence and the increasing power of a small number of transnational digital media platforms.1 Here we can see that the emphasis on media and market freedoms which emerged as a dominant characteristic in earlier chapters considering international media regulation, when combined with the significant absence of international public governance in relation to monopoly and digital media, operates to intensify problems with mediatization. Publicity promises participation, but delivers digital media monopoly, corporate ‘values’ as structuring norms and increasing private power on the international plane. This critique of publicity also draws our attention to the communicative character of international law and finally to the significance of informed publics, media and international law in addressing global problems. In this chapter, I continue to explore the ways in which media is itself shaping the system of international law and its institutions, including via the setting of agendas. But as we have seen in earlier chapters, far from being a simple conduit or messenger, the media are a mechanism for producing connectedness and conflict. I begin by focusing upon the Iraq War as a transformative example of the imbrication of media and international law. Judith Butler’s work on media framing and the Iraq War helps to illustrate the manner in which media representations render lives and events visible and invisible. This theme of visibility is then pursued by reference to the media’s role in shaping international legal narratives and imagery. 1 Nick Couldry, Media, Society, World: Social Theory and Digital Media Practice (Cambridge, Polity Press, 2012) 13–15.

140  The Critique of Publicity I consider the dangers involved with mediatization of international law in a variety of settings, ranging from the representation of refugees to the growth of human rights informational advocacy, before turning to examine humanitarianism and its connection to communicative capitalism. But first I begin by exploring the relationship between mediatization and conflict.

I.  Mediatization and Conflict The Iraq War provides a useful starting point to consider mediatization and conflict. This conflict, like the Vietnam and Gulf Wars before it, was experienced by distant Western media audiences as an affective visual spectacle, highlighting the media’s central role in its construction and translation.2 Whilst notable for this strong visual dimension, ‘traditional modes of information transmission, reliant on policy elite and expert sources, and traditional narratives and framing’ also remained significant ingredients for mainstream Western media coverage.3 This transformative period illustrates the ways in which the traditional media helped to frame the possibilities of international law as a social and political imaginary while media was simultaneously transitioning to global and digital forms. Questions of international legality were prominent in media debates at the time, which featured international lawyers’ expertise and opinion. International law was in the news. For example, in the United Kingdom a group of international lawyers took a stand in the media against the invasion of Iraq in 2003, declaring such action illegal. In a letter to The Guardian the group participated directly in the debate over whether the UK should go to war.4 It was felt that the Government had manipulated the 2 See further: Nicholas Mirzoeff, Watching Babylon: The War in Iraq and Global Visual Culture (New  York, Routledge, 2005); Jean Baudrillard, The Gulf War Did Not Take Place (Paul Patton tr, Bloomington, Indiana University Press, 1995); John B Thompson, The Media and Modernity: A Social Theory of the Media (Cambridge, Polity Press, 1995) 114–15. 3 Charlotte Peevers, The Politics of Justifying Force: The Suez Crisis, The Iraq War, and International Law (Oxford, Oxford University Press, 2014) 230. See further, Charlotte Peevers, ‘Media Spectacles of Legal Accountability in the Reporting of an Official History’ (2017) 87 British Yearbook of International Law 231. Peevers considers the situation in the United Kingdom, for a critical examination of the media coverage in the United States, focusing on The New York Times and its failure to act as a critical watchdog regarding arguments for war, see Howard Friel and Richard Falk, The Record of the Paper: How the New York Times Misreports US Foreign Policy (London, Verso, 2004). 4 Matthew Craven, Susan Marks, Gerry Simpson and Ralph Wilde, ‘We Are Teachers of International Law’ (2004) 17 Leiden Journal of International Law 363, 366; Phillipe Sands, Lawless World: America and the Making and Breaking of Global Rules (London, Penguin Books, 2006) 187–88. In fact, a further letter was also published in The Times newspaper on 19 March 2003 by Professors Philip Allott and Alan Dashwood. It was critical of the presentation of international law in the original letter to The Guardian. As Craven, Marks, Simpson and Wilde later reflected, ‘Now academics were arguing among themselves, and in the same medium. Moreover, the impulse to participate spread outside the narrow, and relatively formal, medium of newspaper correspondence to the news media more generally, as ­various international lawyers, including some of The Guardian signatories, gave interviews and took part in television and radio debates’: 368. See also Antony Anghie, ‘On Critique and the Other’ in Anne Orford (ed), International Law and Its Others (Cambridge, Cambridge University Press, 2006) 396–97.

Mediatization and Conflict  141 media in spinning its legal arguments for the war, and that it was necessary for international lawyers to enter the media fray.5 Their media intervention in The Guardian was intended to have a direct political effect. This involved compromise for some, for their message needed to be clear and simple, which was troubling given the complexity and ambivalence many felt about international law itself.6 Ultimately the experience seems to have confirmed both the enmeshment of international law with the media and the anxiety to which that enmeshment gives rise. Similar letters were published in other countries. But if there was increasing recognition of media influence over issues such as the bearing of international law on the decision to go to war in Iraq, there remained disagreement as to how this should be evaluated. Did the media have too much influence over international law or too little?7 A useful critical analysis of the media’s power in this period is to be found in Judith Butler’s series of essays written in the aftermath of Abu Ghraib and the Iraq War, Frames of War.8 Butler’s work points to the power of images and the media in terms of the representation of war and conflict. She also considers the connections between weapons of war, cameras and images, arguing that weapons ‘cannot operate without the image’ and viewing the media as a mode of military conduct (witness the drone).9 She asks how the public sphere is ‘constituted by the visual technologies of war’, noting the primary role now played by the internet and digital media in ‘regulating our understanding of violence’.10 Butler emphasises the role of ‘framing’ as a technique of media agenda-setting, arguing that the frame is not simply a reflection of reality, ‘but actively participates in a strategy of containment, selectively producing and enforcing what will count as reality’.11 The constant circulation of images contributes to a scatter effect, fragmenting our focus and ability to analyse the costs of war. Here Butler sees the CNN effect as both a tool for distancing the other and for exporting hegemonic perspectives.12 The media then operate to produce and sustain the worthy and 5 In doing so, they followed in the footsteps of predecessors such as Professor Holland, who wrote prolifically to The Times at the turn of the twentieth century: James Brown Scott, ‘In Memoriam: Sir Thomas Erskine Holland’ (1926) 20 American Journal of International Law 516, 518–19. Holland’s letters to the Times are collected in Thomas Erskine Holland, Letters to ‘The Times’ upon War and Neutrality (1881–1909): with some commentary (London, Longmans Green, 1909). See also a more recent letter writer, Georg Schwarzenberger, whose contributions to a variety of publications are included in Georg Schwarzenberger, International Law and Order (London, Stevens & Sons, 1971) App I, 265–81. 6 Craven, Marks, Simpson and Wilde, ‘We Are Teachers’ (2004) 366. 7 See also Carlo Focarelli, International Law as Social Construct: The Struggle for Global Justice (Oxford, Oxford University Press, 2012) 132–35. 8 Judith Butler, Frames of War: When Is Life Grievable? (London, Verso, 2010). 9 ibid xi, 29. 10 ibid xii. 11 ibid xiii. 12 ibid xiv. This ‘CNN Effect’ refers to the argument that global decision-makers are overly influenced by, and reliant upon, the 24-hour news culture fostered by global media agencies such as CNN. Real-time instant media coverage becomes, or is read as, a demand for real-time policy. See further regarding the CNN Effect: Eytan Gilboa, ‘The CNN Effect: The Search for a Communication Theory of

142  The Critique of Publicity unworthy subjects of international law, those who can kill and be killed.13 These effects are resurfacing and evolving online in the digital media context. If what Butler is pointing to are the ways in which media framing limits our capacity to analyse, empathise and associate – to contest the senseless violence of war waged elsewhere in our names – then we should see that the internet and social media may enhance our ability to connect, but can also play a contrary function, leaving us feeling divided and isolated. These are mechanisms for information distribution, but also for perpetual distraction and commodification, often driven (like television before them) by advertising dollars. But for many, social media offers hope as a mechanism to catalyse political and social change and to offer increased agency.14 As Ella McPherson reflects, ‘the hope is that social media allows advocates to bypass the gatekeeper mainstream media – whose newsworthiness decisions can seem inscrutable and captured by elites – to instead communicate direct-to-citizen and direct-to-policymaker’.15 Here the challenge for traditional and digital media will be to develop more participatory and associative (not merely expressive) forms of representation, to challenge the mainstream media’s frames, which Butler characterises as ‘politically saturated … operations of power’.16 As Butler argues, ‘it is only by challenging the dominant media that certain kinds of lives may become visible or knowable in their precariousness’.17 This itself is a way in which to conduct a critical form of media witnessing which might help to counter some of the dangers associated with clicktivism and its earlier variant, compassion fatigue.18 Butler’s view of media power in the context of framing is helpful, but goes too far.19 My concern here is with ascribing the media too much power and audiences too little agency and critical literacy. Clearly this is an account influenced by media coverage of the Iraq War and the evidence at that time of traditional media control, and even complicity. Despite these contextual limitations Butler powerfully reminds us to see politics and violence in terms of their representation, their mediatization and their consequent material effects. After Iraq we have also seen the developing significance of social media coverage of Syria, although this too has brought its own problems.20 International Relations’ (2005) 22 Political Communication 27; Piers Robinson, ‘The CNN Effect: Can the News Media Drive Foreign Policy?’ (1999) 25 Review of International Studies 301. 13 Butler, Frames of War (2010) 47. 14 See further Sarah Joseph, ‘Social Media, Political Change, and Human Rights’ (2012) 35 Boston College International & Comparative Law Review 145; Sam Gregory, ‘Cameras Everywhere Revisited: How Digital Technologies and Social Media Aid and Inhibit Human Rights Documentation and Advocacy’ (2019) 11 Journal of Human Rights Practice 373. 15 Ella McPherson, ‘Social Media and Human Rights Advocacy’ in Howard Tumber and Silvio ­Waisbord (eds), The Routledge Companion to Media and Human Rights (Abingdon, Routledge, 2017) 279. 16 Butler (n 8) 1. 17 ibid 51. 18 See further Daniel Joyce, ‘Media Witnesses: Human Rights in an Age of Digital Media’ (2013) 8 Intercultural Human Rights Law Review 232. 19 Butler (n 8) 73. 20 Uri Friedman, ‘The “CNN Effect” Dies in Syria’ The Atlantic (1 March 2018), available at www. theatlantic.com/international/archive/2018/03/cnn-effect-syria/554387.

Visibility and Invisibility  143 And the torrent of social media activity has had little effect upon the ability of a divided UN Security Council to respond collectively to the conflict.21 Media is connective and helps to construct the social and the sensory, shaping our perception of the world and our ability to respond to events. But just as violence depends upon the media, so too does our capacity to respond with nonviolence, to imagine, perceive and communicate a different reality.22 For Butler ‘non-violence is derived from the apprehension of equality in the midst of precariousness’, ‘media and survival are linked’ and the challenge is to understand the ways in which framing sets agendas and to ask ‘how best to organize media in order to overcome the differential ways through which grievability is allocated and a life is regarded as a life worth living or, indeed, as a living life’.23 This is a challenge which digital media activists have embraced and which offers some hope in countering the effects of publicity upon international law. But we can see from examining mediatization and conflict that technological change is also contributing to an environment where trust in traditional media and digital information sources is damaged. And despite the possibilities promised by digital media in terms of witnessing and attention, many conflicts simply remain forgotten or at least ignored, underscoring the continuing significance of a broader critique of publicity.24

II.  Visibility and Invisibility Certain fields within international law are said to have developed with the assistance of media attention and publicity. The creation of the International Criminal Court, the banning of landmines, and the recognition of women’s human rights are cases in point.25 For example, Michael Bromley writes that, despite its limitations, investigative journalism has made an important contribution to human rights and

21 Rebecca Barber, ‘Syria: The Disgraceful Stain Left By the UN Security Council Veto’ The Interpreter (24 September 2019), available at www.lowyinstitute.org/the-interpreter/syria-disgracefulstain-left-un-security-council-veto. 22 Butler (n 8) 180–81. 23 ibid 181–82. 24 Amanda Taub, ‘Why Some Wars (Like Syria’s) Get More Attention Than Others (Like Yemen’s)’ The New York Times (1 October 2016), available at www.nytimes.com/2016/10/02/world/why-somewars-like-syrias-get-more-attention-than-others-like-yemens.html. See also Virgil Hawkins, ‘Media Selectivity and the Other Side of the CNN Effect: The Consequences of Not Paying Attention to Conflict’ (2011) 4 Media, War & Conflict 55. 25 Christine Chinkin, ‘Normative Development in the International Legal System’ in Dinah ­Shelton  (ed), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford, Oxford University Press, 2003) 35; Christine Chinkin, ‘Human Rights and the Politics of Representation’: Is there a Role for International Law?’ in Michael Byers (ed), The Role of Law in International Politics: Essays in International Relations and International Law (Oxford, Oxford University Press, 2001) 133–34. See also Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (New York, WW Norton & Co, 2011).

144  The Critique of Publicity ‘assists in creating conditions in which people demand their rights through reference to them and exposure of their violation’.26 International environmental law and specialised areas such as whaling are further notable contexts where heightened public concern and ‘norm entrepreneurs’ in civil society have contributed to – if not in any simple sense caused – the inauguration and elaboration of a new legal regime.27 These examples illustrate positive agenda-setting, where something is made visible, but (as seen above in the context of media framing of conflict) agenda-setting can be negative, resulting in invisibility.28 Just as the media is often criticised for missing or misreporting important stories and for failing in its promise of ‘being there’, so too international law is challenged for prioritising certain issues and underemphasising others. The underlying narrative structures assembled in the media, both traditional and digital, create the context in which international legal agendas develop. This is well illustrated in the field of human rights which relies upon certain metaphors to structure its techniques of documentation and advocacy.29 But these typologies can also oversimplify and indeed depoliticise. Complex political events are reduced to morality tales of perpetrators, victims and saviours.30 One-sided and over-simplifying representations are thus shared by both the media and international law, producing effects of both visibility (for one or a group of victims or a theme) and invisibility (for other forgotten victims, contextual analysis and different or competing claims and causes). One widely heard criticism of media 26 This important work is not limited to prominent Western global media outlets, and Bromley reflects that investigative journalism in the Global South has focused on local human rights issues involved in ‘land grabs; environmental degradation; dangerous working conditions; the treatment of indigenous peoples; strike breaking; miscarriages of justice; criminal impunity; child abductions; medical misconduct; excessive profiteering; poverty; sexploitation; disenfranchisement; discrimination; extremism; police brutality; and migration’. Michael Bromley, ‘Investigative Journalism and Human Rights’ in Howard Tumber and Silvio Waisbord (eds), The Routledge Companion to Media and Human Rights (Abingdon, Routledge, 2017) 220, 223. 27 Ian Hurd, ‘Almost Saving Whales: The Ambiguity of Success at the International Whaling ­Commission’ (2012) 26 Ethics & International Affairs 103, 108. See also Charlotte Epstein, The Power of Words in International Relations: Birth of an Anti-Whaling Discourse (Cambridge, The MIT Press, 2008). 28 The classic account of agenda-setting and the media is offered by Maxwell McCombs. See further: Maxwell E McCombs and Donald L Shaw, ‘The Agenda-Setting Function of Mass Media’ (1972) 36 The Public Opinion Quarterly 176; Maxwell McCombs, ‘A Look at Agenda-Setting: Past, Present and Future’ (2005) 6 Journalism Studies 543. John Thompson writes that ‘By making images and information available to individuals located in distant locales, the media shape and influence the course of events and, indeed, create events that would not have existed in their absence’. Thompson, Media and Modernity (1995) 117. See also the important scholarship of Stanley Cohen connecting media and humanitarianism in the context of social suffering: Stanley Cohen, States of Denial: Knowing About Atrocities and Suffering (Cambridge, Polity Press, 2001). Cohen argues (at 169) that ‘the media do not tell us what to think, but they do tell us what to think about’. 29 Ben Golder argues that ‘each metaphor discloses certain possibilities while foreclosing others’ and that we need to ‘learn to read metaphors for what they do not say and show, and to read them against each other and against themselves so as to provoke other, dissonant, understandings’: Ben Golder, ‘Thinking Human Rights Through Metaphor’ (2019) 31 Law & Literature 301, 324. 30 See further Makua Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) 42 Harvard International Law Journal 201.

Visibility and Invisibility  145 representations relates to their tendency to trade in, and hence perpetuate, stereotypes and prejudices. An example, particularly problematic from the standpoint of the international legal imagination, concerns the image conveyed of ‘Africa’. The African continent is commonly represented as a crisis-laden, lawless and tragic monolith; a place without hope and in need of rescue; a space of refugees, famine victims, violence and corruption.31 The impression is given of a zone of problems, the answer to which lies in the rule of law, development, intervention, aid, international justice, governance and expertise – all of which international legal actors and institutions claim to offer. Complex histories are thus reduced to spectacular crises and tragic, defining events.32 Anne Orford’s pioneering work here draws our attention to the ways in which such narratives shape and structure international law. In looking critically at the construction of narratives of humanitarian intervention, Orford refers to the significance of the media in influencing policies and shaping responses. Orford is critical of optimism in the 1990s about media as an agent for soft power and a revitalised human rights.33 According to Orford this practice and the turn to humanitarianism as a universalising and legitimising discourse, depended also in part upon a belief in the affective power of the global mediatization of suffering. The spectacle of Third World suffering in turn underscored a deeper liberal internationalism premised on the assumption that it is the international community which is the rightful and legitimate actor in the process of responding and that it is absolved from responsibility from the causes of such suffering and inequality. Orford writes of the failure of the media, despite their willingness to show images of atrocity, to investigate the real causes of such situations and explore our own complicity in those causes.34 Her claim is that the ‘Third World’ is produced as spectacle, entertainment and monstrosity for those of us watching the media in the ‘First World’ … we are shown nameless starving, weeping, mourning strangers as part of a narrative in which we are spiritually enriched by the knowledge of our superiority and capacity to rescue and redeem these others.35

This takes a good deal of the gloss off the advocacy projects and spectacular forms of justice discussed in chapter five. Orford shows that these ventures may also disengage audiences and hence publics from responsibility for the suffering of others. Media representations can involve bias and discrimination thereby contributing to human rights violation. An important example is the gendered and often sexist

31 See Cohen, States of Denial (2001) 178–85. 32 See further: Fleur Johns, Richard Joyce and Sundhya Pahuja (eds), Events: The Force of International Law (London, Routledge-Cavendish, 2011); Hilary Charlesworth ‘International Law: A Discipline of Crisis’ (2002) 65 Modern Law Review 377. 33 Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge, Cambridge University Press, 2003) 40. 34 ibid 31. 35 ibid 32–33.

146  The Critique of Publicity lens through which much reporting occurs. While we have noted that media advocacy has contributed to awareness of women’s human rights, Barbara M Freeman argues that ‘news media around the world still ignore, downplay or misrepresent women and their concerns, relaying very mixed messages about their rights to equality, security and their socio-political place in society’.36 Orford warns that in ‘the fields of military intervention and economic development, for ­example, the bodies of “womenandchildren” already appear playing the role of objects: victims of rape, objects of religious control, victims of the sex trade, victims of droughts and famines’.37 These kinds of representations of women and children as exemplifying the status of refugees as vulnerable and passive objects of concern offer an illustrative case in point.38 The politics of visibility in international legal discourse has been a particular preoccupation for scholars concerned with refugees.39 Liisa Malkki questions the effects of the ‘humanitarian’ image of the refugee, and points to the way in which media representations can contribute to a sense of inevitability and futility, as images of ‘refugees as a miserable “sea of humanity” have come to seem more and more common’.40 The refugee becomes ‘an ahistorical, universal humanitarian subject’.41 According to Malkki, other ways of seeing those concerned get displaced – they ‘stop being specific persons and become pure victims in general: universal man, universal woman, universal child and, taken together, universal family’.42 The refugee must fit the visual and narrative stereotype in order to be the worthy recipient (and object) of humanitarianism. Yet he or she never can match unrealistic media representations.43 Lilie Chouliaraki and Tijana Stolic argue that news images were integral to constructing an imaginary of the Syrian refugee ‘crisis’ in 2015 with implications for the mobilisation of ‘various forms of moral responsibility in “our” mediated

36 Barbara M Freeman, ‘Media and Women’s Human Rights’ in Howard Tumber and Silvio Waisbord (eds), The Routledge Companion to Media and Human Rights (Abingdon, Routledge, 2017) 387. 37 Orford, Reading Humanitarian Intervention (2003) 66. 38 Liisa H Malkki, ‘Speechless Emissaries: Refugees, Humanitarianism, and Dehistoricization’ (1996) 11 Cultural Anthropology 377, 388. Further examples of ‘media injustice’ take the form of ‘invisibility or limited visibility’ for indigenous peoples and disabled people. Couldry, Media, Society, World (2012) 204. 39 See further: Terence Wright, ‘The Media and Representations of Refugees and Other Forced Migrants’ in Elena Fiddian-Qasmiyeh, Gil Loescher, Katy Long, and Nando Sigona (eds), The Oxford Handbook of Refugee and Forced Migration Studies (Oxford, Oxford University Press, 2014) 460–70; Patricia Tuitt, False Images: The Law’s Construction of the Refugee (London, Pluto Press, 1996). See also Agamben’s discussion of Hannah Arendt’s writing on the position and category of the refugee as the expected paradigm for the rights of man, and the actual embodiment of such rights in crisis: Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Daniel Heller-Roazen tr, Stanford, Stanford University Press, 1998) 126, 134. 40 Malkki, ‘Speechless Emissaries’ (1996) 377. 41 ibid 378. 42 ibid. 43 ibid 385–86.

Visibility and Invisibility  147 public life’.44 The narratives and images generated by media coverage can shape public responses to refugees, generating both fear and empathy. But even where refugees are pictured as deserving compassion and assistance, their mediatization involves moral spectacle for the benefit of audiences, and can render refugees voiceless.45 A sombre example here is the iconic image of the Syrian child, Alan Kurdi, lying dead on a Turkish beach after crossing Mediterranean Sea; it represents at once a call to action, but also the continuing ‘infantilization’ of refugees in media accounts.46 It is clear that media representation of refugees can act to silence and dehumanise, but it is also important to think of the possibilities offered by traditional and social media for refugees to take control of their own stories and to challenge stereotypes and prejudice. Clearly for some there will be difficulties in accessing digital media and the internet, but there are new voices, perspectives and formats emerging. A powerful example of this genre of mediated self-representation is Kurdish Iranian journalist and author, Behrooz Boochani, who wrote an awardwinning account of his experiences in the Australian system of offshore detention on Manus Island via text messages.47 He has also made a documentary film, Chauka Please Tell Us the Time, using a smart phone to represent his and others experiences of off-shore detention and its awful human costs.48 As a journalist Boochani has been able to capture attention both through his Facebook posts and also in the mainstream media.49 These social media strategies to reclaim the narrative and self-represent are powerful forms of witnessing, but must still navigate and, at times, resist a social media environment which can depoliticise and in other contexts encourages ‘a self-centred form of civic agency’.50 The visual has always played a role in determining ‘newsworthiness’, but this focus on imagery to determine what merits attention can lead to simplification and bias.51 The significance 44 Lilie Chouliaraki and Tijana Stolic, ‘Rethinking Media Responsibility in the Refugee “Crisis”: A Visual Typology of European News’ (2017) 39 Media, Culture & Society 1162, 1162, see also 1165, 1173–74. 45 As Chouliaraki and Stolic note, ‘Regimes of visibility … are key spaces of moralization that produce and regulate the public dispositions by which we collectively take responsibility for the plight of distant others’: ibid 1172, see also 1162, 1163–67, 1173–74. 46 ibid 1168, 1173. See also Heide Fehrenbach and Davide Rodogno, ‘“A Horrific Photo of a Drowned Syrian Child”: Humanitarian Photography and NGO Media Strategies in Historical Perspective’ (2015) 97 International Review of the Red Cross 1121. 47 Behrooz Boochani, No Friend but the Mountains: Writing from Manus Prison (Sydney, Picador, 2018). 48 Chauka Please Tell Us the Time (Arash Kamali Sarvestani and Behrooz Boochani, Sarvin Productions, 2017). 49 Maria Rae, Rosa Holman and Amy Nethery, ‘Self-Represented Witnessing: The Use of Social Media by Asylum Seekers in Australia’s Offshore Immigration Detention Centres’ (2018) 40 Media, Culture & Society 479. 50 Chouliaraki and Stolic, ‘Rethinking Media Responsibility’ (2017) 1173. 51 Stanley Cohen linked visuality here with editorial decision-making regarding newsworthiness: Cohen (n 28) 173. On the deepening of this visual turn enabled in part by digital media see Roland Bleiker, ‘Mapping Visual Global Politics’ in Roland Bleiker (ed), Visual Global Politics (Abingdon, ­Routledge, 2018) 4–8.

148  The Critique of Publicity of visibility intensifies in the digital media context, creating some further problems for international law as a primarily text-based discipline.52 This also connects with the broader critique of publicity as mediated spectacle. Mediatization (whether traditional, digital or combined) continues to shape international law, with particular resonance for the practice of human rights, international justice and humanitarianism.53 For example, journalistic methodologies have influenced the form and function of human rights organisations and advocates.54 Amnesty International and Human Rights Watch exemplify this and along with other NGOs continue to perform an informational role which can in certain contexts blur the boundaries between human rights advocacy and journalism.55 Meg McLagan notes: The global spread of electronic and new digital technologies over the last two decades has transformed the way in which social movements organize their relationship to publicity, with ‘image politics’ becoming increasingly central to the ways in which political claims are made.56

But not all NGOs are equally resourced to compete in this way for attention and this now also involves reliance on commercial digital media platforms for infrastructure.57 And while new technologies and platforms may increase visibility and attention this is not necessarily accompanied by a similar increase in comprehension of the complexity of issues, themes and their causes.58 Instead these advertising-driven and image-based marketing mechanisms generate a form of celebrity humanitarianism, connecting the cause of victims with the famous and powerful.59 In addition, the use of platforms in an effort to increase visibility often 52 Sebastian Kaempf, ‘Digital Media’ in Roland Bleiker (ed), Visual Global Politics (Abingdon, ­Routledge, 2018) 103; Jessie Hohmann and Daniel Joyce, ‘Introduction’ in Jessie Hohmann and Daniel Joyce (eds), International Law’s Objects (Oxford, Oxford University Press, 2018) 2. 53 In the field of international criminal justice there is increased attention to messaging and expression as key modes of action. See for example: Barrie Sander, ‘The Expressive Turn of International Criminal Justice: A Field in Search of Meaning’ (2019) 32 Leiden Journal of International Law 851; Carsten Stahn, Justice as Message: Expressivist Foundations of International Criminal Justice (Oxford, Oxford University Press, 2020). 54 See further Lieve Gies, Mediating Human Rights: Media, Culture and Human Rights Law ­(Abingdon, Routledge, 2015) ch 6. 55 This growing informational role for NGOs also reflects the difficulty and danger involved for traditional journalists in reporting and in gaining access to conflict and disaster settings. See further: Matthew Powers, ‘The New Boots on the Ground: NGOs in the Changing Landscape of International News’ (2016) 17 Journalism 401; Joel R Pruce and Alexandra Cosima Budabin, ‘Beyond Naming and Shaming: New Modalities of Information Politics in Human Rights’ (2016) 15 Journal of Human Rights 408, 422. 56 Meg McLagan, ‘Principles, Publicity, and Politics: Notes on Human Rights Media’ (2003) 105 American Anthropologist 605, 605. See also Vera Mackie, ‘Putting a Face to a Name: Visualising Human Rights’ (2014) 20 Cultural Studies Review 213. 57 A Trevor Thrall, Dominik Stecula and Diana Sweet, ‘May We Have Your Attention Please? HumanRights NGOs and the Problem of Global Communication’ (2014) 19 The International Journal of Press/ Politics 135; McPherson, ‘Social Media and Human Rights Advocacy’ (2017) 281–83. 58 Cohen (n 28) 288. See also Couldry (n 1) 204. 59 See further: Ilan Kapoor, Celebrity Humanitarianism: The Ideology of Global Charity (Abingdon, Routledge, 2013); Alexandra Cosima Budabin and Lisa Ann Richey, ‘Advocacy Narratives and ­Celebrity

Communicative Capitalism and Humanitarianism  149 renders a human rights NGO dependent on the social media logic of a particular platform and the ways its algorithm determines visibility.60 This may also motivate some NGOs to ‘buy visibility for their social media communications through targeted advertisements’.61 Social media platforms are shaping the communications strategies of international legal actors as we began to examine in chapter five. But when human rights NGOs draw attention to the violation of rights involved in the communicative capitalism model of digital media companies such as Facebook and Google they do so relying upon the very same companies to communicate their message.62 As we have seen these companies are mostly left to self-regulate and increasingly they are under pressure to monitor and moderate online content. But already while doing so they have sometimes censored and removed important evidence of human rights violations and international crimes (from, for example, Syria and Myanmar).63 And yet despite these significant problems there is evidence of communicative capitalism and humanitarianism’s deepening forms of connection, dependence and complicity.

III.  Communicative Capitalism and Humanitarianism As noted at the beginning of this book, news is now delivered in many contexts through a dominant search engine such as Google or Baidu and/or via another dominant social media platform such as Facebook or Weibo. This is giving rise to genuine concerns regarding ‘fake news’, manipulation of information and distrust, algorithmic bias and the loss of broader public conversations as users retreat to self-referential and reinforcing social media worlds.64 Digital media literacy and

Engagement: The Case of Ben Affleck in Congo’ (2018) 40 Human Rights Quarterly 260. This is not only a contemporary phenomenon, see also: Charles P Henry, ‘Celebrity as a Political Resource: The Human Rights Now! Campaign’ (2020) 42 Human Rights Quarterly 174; Glenda Sluga, ‘Hollywood, the United Nations, and the Long History of Film Communicating Internationalism’ in Jonas Brendebach, Martin Herzer and Heidi JS Tworek (eds), International Organizations and the Media in the Nineteenth and Twentieth Centuries: Exorbitant Expectations (Abingdon, Routledge, 2018). 60 Ella McPherson, ‘Risk and the Pluralism of Digital Human Rights Fact-Finding and Advocacy’ in Molly K Land and Jay D Aronson (eds), New Technologies for Human Rights Law and Practice (Cambridge, Cambridge University Press, 2018) 191, 200, 202–05. 61 ibid 206. 62 The back cover page of a recent report condemning Google and Facebook invites the reader to ‘join the conversation’ on Facebook and Twitter. Amnesty International, ‘Surveillance Giants: How the Business Model of Google and Facebook Threatens Human Rights’ (21 November 2019), available at www.amnesty.org/en/documents/pol30/1404/2019/en. 63 Avi Asher-Schapiro, ‘YouTube and Facebook Are Removing Evidence of Atrocities, Jeopardizing Cases Against War Criminals’ The Intercept (3 November 2017), available at theintercept. com/2017/11/02/war-crimes-youtube-facebook-syria-rohingya. 64 For further analysis of these issues see: Nicholas Lemann, ‘Solving the Problem of Fake News’ The New Yorker (30 November 2016), available at www.newyorker.com/news/news-desk/solvingthe-problem-of-fake-news; Paul McGeough, ‘What the Internet Did For Journalism, Donald Trump

150  The Critique of Publicity activism, platform (and algorithmic) regulation and responsibility may each provide partial solutions to the broader problem. But a deeper appreciation is also needed of the embedding of crisis and communicative capitalism in contemporary digital media formats, despite our hopes for their affective and connective possibilities.65 Humanitarianism has become a dominant language (and imagery) within international law which seeks to connect fields such as human rights, the laws of war and international criminal law. As illustrated in chapter five, it dominates much of the normative space within contemporary international legal discourse. This can be linked to broader arguments for the place of the individual in international law and to the communicative and social claims of liberal internationalism as it has navigated the post-Cold War period. Drawing on a US-centred, political conception of human rights, the revisionist historian Samuel Moyn argues that human rights as we understand them today grew to prominence largely in the 1970s.66 Amanda Alexander also suggests provocatively, in the mode of Moyn, that international humanitarian law’s development is far more recent than conventionally understood.67 This development was due in large part to the variety of actors now involved in the making of international humanitarian law and to the role of mediated NGO advocacy and its appeal to public opinion in its efforts to influence decision-making and the course of international relations.68 Writing of the broader mediatization of politics, Nick Couldry reflects that the ‘necessity for a media strategy, and the requirement to submit to something like a “media logic”, affects all political actors from traditional parties to protest groups to humanitarian NGOs’.69 Indeed, Stanley Cohen earlier pointed to this connection between media and humanitarianism, reflecting that ‘Humanitarian organizations, in the business of using knowledge to induce compassion, are compelled to adjust their agendas to an increasingly powerful and global media regime’.70 is Doing for Political Reality’ Sydney Morning Herald (6 December 2016), available at www.smh. com.au/world/what-the-internet-did-for-journalism-donald-trump-is-doing-for-political-reality20161206-gt4vbk.html. For a useful examination of the discriminatory possibilities of algorithms see Robert Elliott Smith, Rage Inside the Machine: The Prejudice of Algorithms, and How to Stop the Internet Making Bigots of Us All (London, Bloomsbury, 2019). 65 Jodi Dean, Blog Theory: Feedback and Capture in the Circuits of Drive (Cambridge, Polity Press, 2010) 100–01. 66 Samuel Moyn, Human Rights and the Uses of History (London, Verso, 2014) 136–37. 67 Amanda Alexander, ‘A Short History of International Humanitarian Law’ (2015) 26 European Journal of International Law 109, see esp 135–38. See also the classic contemporary, if parochial, revisionist history of human rights: Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, Harvard University Press, 2012). A more traditional account is offered by Stephen Hopgood, who writes that ‘The professional practices we call “humanitarianism”, “human rights” and “international justice” began to evolve in a more distinct form for the first time in the years after 1918, but all were rooted in the same sentimental nineteenth century bourgeois Protestant culture of human suffering’: Stephen Hopgood, The Endtimes of Human Rights (Ithaca, Cornell University Press, 2013) 26. 68 Alexander, ‘A Short History of International Humanitarian Law’ (2015)136. 69 Couldry (n 1) 146. 70 Cohen (n 28) 169. This media logic has also been understood by Bernard Harcourt in terms of a broader shift to an ‘expository’ society: Bernard E Harcourt, Exposed: Desire and Disobedience in the

Communicative Capitalism and Humanitarianism  151 Increasingly, of course, humanitarianism is influenced by digital media platforms, a phenomenon I term ‘platform humanitarianism’.71 Humanitarianism’s reliance on platforms, such as Facebook, Twitter and Google, sees it shaped by the ideology, design and neoliberal commitments of Silicon Valley and its dominant companies. Through this frame of communicative capitalism the ‘common humanity’ espoused by humanitarians becomes less of a collective vision and lies closer to the neoliberal individualism which has monopolised so much of the contemporary political imagination. A similar form of mediatization is also a feature of international criminal law, which Christine Schwöbel-Patel contends is shaped by ‘the sensationalism of a competitive media economy’.72 There are also criticisms of the turn within the human rights movement towards commodified forms of advocacy, fundraising and competition for attention and power between NGOs. As part of a broader critique of human rights Stephen Hopgood argues that ‘Neoliberalism opened up a “humanitarian marketplace” to organizations whose business model was increasingly about publicity and fund-raising to pay for professional global advocacy rather than to stimulate transnational collective action.’73 Humanitarianism’s rise and discursive dominance parallels the emergence of the attention economy.74 Hopgood writes of publicity as an organising principle for human rights and its connections to the market: ‘both humanitarian and human rights advocates relied increasingly on a similar business model: suffering elsewhere – packaged in images, reports, videos and campaigns – was used by professionals to increase press coverage and raise income from private and public sources’.75 Although this model drew initially on the emergence of global media it now develops principally in the context of digital media monopoly. NGO advocacy increasingly turns to social media platforms to communicate its messages, seek publicity and engage in digital witnessing in the attempt to capture audiences motivated by humanitarian concerns.76 But at what cost? Digital Age (Cambridge, Harvard University Press, 2015). Christine Schwöbel-Patel argues that: ‘Actors of humanitarianism, including institutions of ICL, NGOs, governments and others acting in the name of humanity, arguably conduct themselves with a view to competition, growth and profits. In today’s visual society, if you are not seen, you do not exist.’ Christine Schwöbel-Patel, ‘Spectacle in International Criminal Law: The Fundraising Image of Victimhood’ (2016) 4 London Review of International Law 247, 257. 71 See for example examination of ‘selfie humanitarianism’ and the ways in which this form of platform humanitarianism ‘reinforces an inward gaze, which shifts away from a political concern with global injustices into an individualized, neo-liberalized charity that is intertwined with entrepreneurial projects of the self ’. Ofra Koffman, Shani Orgad and Rosalind Gill, ‘Girl Power and “Selfie Humanitarianism”’ (2015) 29 Continuum: Journal of Media & Cultural Studies 157, 165. 72 Schwöbel-Patel, ‘Spectacle in International Criminal Law’ (2016) 263, 272. 73 Hopgood, The Endtimes of Human Rights (2013) 97. 74 Again this increases the significance of image-making: Lina Dencik and Stuart Allan, ‘In/visible Conflicts: NGOs and the Visual Politics of Humanitarian Photography’ (2017) 39 Media, Culture & Society 1178. 75 Hopgood (n 67) 103. 76 For scholarship on NGO engagement with digital media and the connections between the media and human rights see: Joseph, ‘Social Media, Political Change, and Human Rights’ (2012); Philip Alston and Colin Gillespie, ‘Global Human Rights Monitoring, New Technologies, and the Politics of

152  The Critique of Publicity The material infrastructure provided by those platforms both offers the possibility for connection and participation, while threatening to subsume or bypass existing modes of governance with the corporate ideology and ambition of communicative capitalism.77 There is also a deeper context here. Human rights in practice fails to sufficiently tackle problems of inequality, private power and the dominance of markets. Samuel Moyn argues, ‘The real trouble about human rights, when historically correlated with market fundamentalism, is not that they promote it but that they are unambitious in theory and ineffectual in practice in the face of market fundamentalism’s success’.78 The reliance upon platforms by human rights NGOs and advocates, further entangles the field with neoliberal ideologies embedded within the infrastructure of Silicon Valley. As Ella McPherson warns, this can also expose human rights organisations to greater risks in terms of reputation, security and surveillance while generating profits for commercial platforms.79 Alice Marwick’s Status Update critiques the status culture associated with ­Silicon Valley and its individualism.80 Marwick is able to show that while acclaiming internet freedom, increasing participation and connection, social media platforms (and the workers and entrepreneurs associated with them) also reinforce an ideology composed of ‘entrepreneurial capitalism, technological determinism, and digital exceptionalism’.81 This helps to spread and facilitate a culture of publicity and self-branding that in fact erodes our sense of community and connection, as ‘social media applications encourage people to compete for social benefits by gaining visibility and attention’, often at the expense of one another.82 Social media, in particular, has intensified an ­‘attention economy’ where visibility contributes to status – our actions only count when we are seen performing them.83 And yet while this performance of the self is required to be transparent and authentic, it is inevitably edited, cautious and

Information’ (2012) 23 European Journal of International Law 1089; Matthew Powers, ‘The Structural Organization of NGO Publicity Work: Explaining Divergent Publicity Strategies at Humanitarian and Human Rights Organizations’ (2014) 8 International Journal of Communication 90; Sam Gregory, ‘Ubiquitous Witnesses: Who Creates Evidence and the Live(d) Experience of Human Rights  ­Violations?’ (2015) 18 Information, Communication & Society 1378. 77 See further the ways in which a human rights framework is displaced by ‘social values’ in the selfregulatory context of platform governance, Stefania Di Stefano, ‘Facebook’s New Recipe: Too Much Optimism, Not Enough Human Rights’ OpenGlobalRights (5 March 2020), available at www.openglobalrights.org/facebooks-new-recipe-too-much-optimism-not-enough-human-rights. 78 Samuel Moyn, Not Enough: Human Rights in an Unequal World (Cambridge, Harvard University Press, 2018) 216. A similar point is made by Stephen Hopgood who argues that ‘The more reliant global humanists become on the successful functioning of the world economy to fund their expanding operations, the less likely it is that attention to social inequality will emerge’: Hopgood (n 67) 96. 79 McPherson, ‘Risk’ (2018). 80 Alice Marwick, Status Update: Celebrity, Publicity, and Branding in the Social Media Age (New Haven, Yale University Press, 2013). 81 ibid 4, 175. 82 ibid 5, 93, 160–1. 83 ibid 14, 79, 143.

Communicative Capitalism and Humanitarianism  153 rather disconnected.84 The digital platforms themselves are designed to surveil, control and influence consumers in order to advertise to and profit from them. Marwick’s work points further to issues of transnational corporate power and responsibility. For while the publicity functions of digital media are sold as freedom-enhancing and transformational, they have also helped to usher in further commodification and ‘a particular type of transparency that privileges the kinds of information sharing that benefit corporations more than individuals’.85 This connects with the critique offered by Jodi Dean. The information economy, driven by the internet as a platform for communication and commodified by global media companies, has become a cliché of our times. Yet, as Dean contends, these new channels for publicity only mask the persistence of arenas of secrecy and unaccountability, serving as the legitimating ideology of what she terms communicative capitalism. If the internet is the new global public sphere, on her account this must be recognised not as a boon for democratic politics, but rather as a threat to it, insofar as public affairs are depoliticised and removed to an increasingly commercialised social space.86 From this perspective, what passes for publicity in fact marks the eclipse of the public by the private sphere and the market.87 It is useful here to focus upon both the private and public dimensions of a culture of increasing mediatization and publicity, drawing on Dean’s insights regarding commodification and communicative capitalism, and extending them in the context of social media influence. In her more recent work on communicative capitalism, Dean emphasises psychoanalytical theory regarding ‘drive’ to capture the circulation and circuitry involved with affective networks such as social media platforms and digital forms of communication such as blogging. Her critique of commodification extends beyond the internet to the dominant platforms which have come to shape our experience of it. Where Marwick is able to unmask the ideological commitments which underpin notions of status and value in Silicon Valley and to connect them with an entrepreneurial neoliberal agenda, Dean contends that ‘Communicative capitalism is that economic-ideological form wherein reflexivity captures creativity and resistance so as to enrich the few as it placates and diverts the many’.88 She argues further that despite the entrapment and dangers involved in communicative capitalism, evidence of which it is now hard to ignore, there remains ‘faith in the ideologies of networks and publicity’.89 Indeed evangelists for technology, digital media (and now data), who include activists and humanitarians ‘continue to emphasize the democratic potential of the internet, even in the face of increases in economic inequality and consolidation of neoliberal capitalism in and 84 ibid 195. 85 ibid 244. 86 See further Jodi Dean, Publicity’s Secret: How Technoculture Capitalizes on Democracy (Ithaca, Cornell University Press, 2002). 87 ibid 43. 88 Dean, Blog Theory (2010) 4–5. 89 ibid 31.

154  The Critique of Publicity through globally networked communication’.90 Echoing Marwick, Dean argues that digital media networks promise participation and personalisation, connection and community, but result in diversion and individuation – ‘Participation becomes indistinguishable from personalization, the continued cultivation of one’s person’.91 The emphasis is upon affect at the expense of community, upon publicity and marketing at the expense of ‘common humanity’, a proliferation of information accompanied by ‘The lack of a capacity to know’.92 It is in this way that digital media platforms ‘let us stage and perform our own entrapment’ within a perpetual drive for further information.93 As Dean concludes: The displacement of political conflict to the terrain of networked media has the perverse repercussion of perpetually expanding the topography of struggle even as it constantly signals the locations, intentions, and networks of those who are fighting. This expansion has thus far strengthened communicative capitalism as it feeds on accelerating crises and emergencies.94

Mediatization has helped to entrench the discursive monopoly of humanitarianism across the fields of human rights, international humanitarian law and international criminal law. I have sought to connect that development with critical insights from media theory – focusing on the work of Alice Marwick and Jodi Dean. Their work illuminates the dangers of technological determinism and digital media monopoly associated with our increasing dependence upon the internet, social media and search engines. They usefully connect the form and values embedded within these platforms, along with their desire to remain free from meaningful public regulation, with a set of ideological commitments dominant within Silicon Valley that promise connection and autonomy, but deliver inequality and spectacle – in the form of communicative capitalism. These are important insights for international law more broadly as it navigates the digital transformations of our present, but I argue that they have a particular resonance for humanitarianism and its heady adoption of digital practices and platforms. Along with the heralded potential of technological innovation, S­ andvik, Jumbert, Karlsrud and Kaufmann remind us that algorithms are political, that humanitarianism is a potential market for communicative capitalism, that dangers exist in terms of data privacy and propaganda, and that the digital divide may result in invisibility within the terrain of humanitarianism. They ask provocatively, ‘Will individuals and communities whose life patterns do not generate enough digital breadcrumbs to make it into the algorithms fall outside the humanitarian space?’95 The rise of platform humanitarianism may come at a cost to humanitarian 90 ibid 31. 91 ibid 82. 92 ibid 96, 111. 93 ibid 111, 122. 94 ibid 124–25. 95 Kristin Bergtora Sandvik, Maria Gabrielsen Jumbert, John Karlsrud and Mareile Kaufmann, ‘Humanitarian Technology: A Critical Research Agenda’ (2014) 96 International Review of the Red Cross 219, 229.

International Law, Media and Engaging Informed Publics  155 principles, involving commodification, privatisation, publicity as a dominant form of humanitarian activity and the distancing of its subjects. As Sandvik, Jumbert, Karlsrud and Kaufmann argue: [T]he combination of the data available to humanitarians, and the ways in which technology allows for parallel immediacy and remoteness between humanitarians and the field, will impact the way in which empathy is mobilized, and our understanding of a common humanity.96

The promise of common humanity is increasingly shaped by communicative capitalism in a variety of digital media forms. As we reflect on the monopoly of platforms and the monopoly discourse of humanitarianism, we need also to pay greater critical attention to the connections between them and to the communicative dimension of international law.

IV.  International Law, Media and Engaging Informed Publics Despite its importance, the media is not given the significance or prominence in international legal theorising which it has gained in other areas such as international relations, political and social theory. There has been the perception that the regulation of the media is a matter of domestic or at best regional concern, linking in with difficult questions regarding the relationship of the media to the state. In addition, the media is often approached as a threat to legal standards rather than a resource, in as much as it is seen as having differing standards of proof, objectivity and reliability than the law. A further theme which has developed in this chapter is that of media and privatisation. Arising in the context of accounts of the emergence of different actors on the international stage such as the multinational corporation, this alerts us to, and from certain perspectives celebrates, the loss of state control over the media through globalisation, the spread of transnational media markets and the infrastructural innovation of digital media platforms.97 From a critical perspective, however, media’s connection to privatisation can lead to monopoly, distortion and the commodification, rather than the regulation or protection, of the public sphere. This itself poses challenges for international law, media and informed publics. Global publics form in the context of global problems including, for example, climate change, conflict, inequality and the COVID-19 pandemic.98 Collective 96 ibid 241. 97 This concern with monopoly and the power of transnational media corporations is often associated with contemporary debates over globalisation, but as John Thompson notes, ‘The origins of these conglomerates can be traced back to the transformation of the press in the nineteenth century’. ­Thompson (n 2) 160. 98 See further, John Dewey, The Public and Its Problems (New York, Holt, 1927).

156  The Critique of Publicity global problems of this magnitude demand collective global governance and public infrastructure. In 2017, the year before the Cambridge Analytica scandal broke, Mark Zuckerberg, CEO and Founder of Facebook, published a lengthy essay on his own platform entitled ‘Building Global Community’.99 In it he positions Facebook as the next step in a history of building ‘social infrastructure like communities, media and governments to empower us to achieve things we couldn’t on our own’.100 Zuckerberg highlights global opportunities to end poverty, promote peace and prosperity and develop science, alongside challenges such as terrorism, climate change and pandemics. Such challenges and opportunities require ‘a global community’, but what does his vision of common humanity rely upon?101 In short, a ‘social infrastructure’ developed by Facebook ‘to give people the power to build a global community that works for all of us’.102 But what community and what vision of ‘us’ does Facebook’s corporate imaginary entail? What Facebook’s CEO fails to mention is that, despite the rhetoric involved in this fusion of its internal corporate ideology with liberal internationalism and technological determinism, Facebook is a community that works principally for Facebook. It remains a for-profit US corporation with an advertising business model that is deeply embedded in practices of communicative capitalism. Despite its vast influence and economic power Facebook is no replacement for the state or the United Nations or for international organisation more generally. When Mark Zuckerberg asks ‘are we building the world we want?’, his presupposed vision of the world is Facebook, and its continued global dominance of digital mediadriven infrastructure.103 And yet after the Cambridge Analytica revelations it is simply no longer feasible to rely on privatisation of international life to achieve effective and inclusive global public communications infrastructure and governance. Just as Facebook’s conception of friendship as a social network has been criticised as one-dimensional and vapid, so too is its vision for global governance and infrastructure, except in one important regard – that it may portend not only convenience for the consumer, but also contribute to the violation of rights and the consolidation of private power with public consequences. Facebook’s vision must be rejected as dangerous and destructive of the already brittle public trust in institutions of international law and media. Disruptive corporate ambition is no panacea for the great disruptions of our time. Similarly, we need to let go of the frictionless ideal of a post-1989 liberal internationalism where international ‘rule of law’ was imagined as triumphant and 99 Mark Zuckerberg, ‘Building Global Community’ (17 February 2017), available at www.facebook. com/notes/mark-zuckerberg/building-global-community/10154544292806634. 100 ibid. 101 ibid. Discussing Mark Zuckerberg’s essay in the context of the demise of liberal internationalism Martti Koskenniemi reflects: ‘What used to be a clear and broadly shared objective – building of a global community – is no longer so clearly visible.’ Martti Koskenniemi, ‘Less is More: Legal Imagination in Context’ (2018) 31 Leiden Journal of International Law 469, 469. 102 Zuckerberg, ‘Building Global Community’ (2017). 103 ibid.

Summary  157 Cold War conflicts consigned to history. The unified ‘international community’ of that time can now be seen as naïve and parochial, paralleling idealised visions of the internet as offering renewal for democracy and the public sphere. Contemporary conditions continue to call such narratives into question. Technology and digital media developments remain critical to international law’s operation, and offer great opportunity, but they require regulation in the public interest. As John Naughton presciently argued at the turn of the century, the internet ‘is wonderful in what it can do for us, and terrifying in what it might do to us’.104 We should now ask similar questions of big data, algorithms and digital media platforms. A creative approach to global governance is required, involving traditional and newly designed international legal frameworks and organisations, digital media companies themselves, and most significantly the informed publics they are said to serve. The rigid separation between ‘the international’, ‘the regional’ and ‘local’ is continuing to blur and international law needs to take account of transnational resources whilst assessing the resilience of older frameworks for media regulation such as those offered by human rights. The traditional media along with its freedom also faces a range of political, economic and technological challenges. Digital platforms are cannibalising the media market, disclaiming any responsibilities as publishers, and binding publics to an extractive form of communicative capitalism which governments have been slow to regulate but quick to emulate. And yet despite the limits and dangers associated with international law and the media, both remain critical to future efforts to repair and generate trust and collective solidarity in order to challenge the divisions and inequities of international life. In this book, and in this chapter in particular, I have tried to show how the opposite can also occur. Yet I remain convinced that greater attention should be paid to the communicative possibilities of international law, and to the role of the media in its critique and further development.

V. Summary Overall, the media as it functions in constructing our sense of an international sphere has an ideological role, one which can both be useful and detrimental to international law from differing perspectives. The media can be seen to play a role in determining which issues merit international legal attention, and what form that attention should take. In question throughout is not only the media’s role in bringing issues to public consciousness, but also its implication in the preservation of silences and the maintenance of obsessions and anxieties, such as those over security, war and conflict. However, the desire for greater publicity, whilst ­bringing

104 John Naughton, A Brief History of the Future: The Origins of the Internet (London, Phoenix, 2000) 45. See further Evgeny Morozov, The Net Delusion: How Not to Liberate the World (London, Allen Lane, 2011) 288–89.

158  The Critique of Publicity with it the perception of legitimacy associated with transparency and greater participation, can also bring associated problems of human rights voyeurism and stereotyping. Victims are accorded pre-designated and simplified categories of participation and their experiences become the fodder for strategic advocacy. Our expectations of and desires for the media have often been thwarted by cynicism about its simplification and distortion of issues – by the turn from publicity to marketing and privatisation, and perceptions of the manipulation of public opinion. These concerns have a historical pedigree, but also speak forcefully to the digital present. As we have seen, international law itself is engaged in a process of mediatization, connected with its work on the fabrication of its own image. This process of mediatization deepens and transforms as the media and international law adjust to technological changes and adopt digital forms. The challenge here is to ensure that international law responds to the dangers posed by digital media monopoly, to its preference for technology in place of regulation or policy, and to wider challenges posed by the continued impoverishment and manipulation of the flow of information on the international plane. Paying greater attention to these dynamics of mediatization also requires fuller appreciation of the communicative character of international law and its consequent strengths and weaknesses. Part of the story here concerns the turn towards soft messaging, administrative forms of governance, infrastructure as regulation, corporate social responsibility, and the continuing turn away from a more statecentric treaty-based model of public international law. Initially this might appear to be a progressive move away from the state and towards participation, but I argue that it may also involve a consolidation of private power that over time may come to threaten the underlying goal of a system of international law which informs and is in turn informed by its publics. In this book I have argued more broadly that the imbrication of media and international law is multifaceted and needs to be appreciated from a range of perspectives. Here the critique of publicity relating to communicative capitalism also connects with the earlier examination of the absence of regulation of digital media companies and their consequent concentration and power. To address this broader problem there will need to be further regulation in the interests of informed publics. In this regard it is important to reconsider the value and resilience of existing international media law frameworks including, most significantly, the human rights model, but also to be realistic about the failures and problems associated with that system. For example, as we saw earlier, the human rights system struggles with controlling private power, individuates and simplifies collective and highly complex issues, and often underplays their structural dimension. Equally, as I have noted in earlier chapters, there is a significant absence of international economic law regarding the media which needs to be addressed across a range of areas including digital media monopoly. Despite longstanding resistance to regulation of the tech industry in the name of innovation and economic growth there are signs already of a growing acceptance for such

Summary  159 regulation especially within national and regional contexts, and including from some of the digital media companies themselves.105 Some of this regulation will need to involve international law. Domestic and regional laws, along with emerging forms of corporate self-regulation and responsibility, constitute only a partial solution. Similarly, publicity though offering a tool for international legal institutions and actors to generate engagement and legitimacy, does not itself guarantee public participation. That will continue to be the work of informed publics.

105 See for example: European Commission, ‘Digital Single Market: EU Negotiators Agree to Set Up New European Rules to Improve Fairness of Online Platforms’ Trading Practices’ (Press Release, Strasbourg, 14 February 2019), available at https://ec.europa.eu/digital-single-market/en/news/eu-negotiatorsagree-set-new-european-rules-improve-fairness-online-platforms-trading-practices; BBC News Reality Check Team, ‘Social Media: How Do Other Governments Regulate It?’ BBC News (12 February 2020), available at www.bbc.com/news/technology-47135058; Mark Zuckerberg, ‘Big Tech Needs More Regulation: New Rules Might Hurt Facebook’s Bottom Line in the Short Term But Will Help Long Term’ Financial Times (17 February 2020), available at www.ft.com/content/602ec7ec-4f18-11ea-95a 0-43d18ec715f5.

Conclusion I first began thinking about media and international law as a graduate student watching the Iraq War unfold, captivated by the mediatization of the conflict and debates over its legality. This led to a deeper enquiry concerning international law’s role in regulating the media. At the time there was a good deal more enthusiasm about the prospects for both international law and the media than we find today. The internet was idealised by many as a democratising and globalising force and concerns about its regulation were downplayed in favour of hopes that there would develop a revived and connective digital public sphere. Now, that earlier confidence in the universality of international law and the benefits of globalisation is challenged by contemporary developments. The great disruption of COVID-19 and the existential threat of climate change remind us that community, co-operation and communication on the international plane remain vitally important. But taking the longer view of history, it is clear that these challenges will also amplify many of the problems facing both media and international law, which I have set out to explore in preceding chapters. One thing remains clear: that the global problems we face require the participation of informed global publics. International law itself requires informed publics to function, and this has implications for the ways in which its frameworks and institutions address media regulation. This monograph has examined the changes occurring in the media landscape and the questions that this is generating for international law, both in terms of regulation and the field’s own shaping through processes of mediatization. This two-pronged focus is innovative and can help reveal the interdependence of media and international law, despite ongoing anxieties regarding their relationship. I have adopted both an historical and a critical conceptual perspective. Such an approach illustrates the resilience of existing international law frameworks, but also their significant silences. I argue that in approaching the changes brought to both fields by rapid technological developments we must be attentive to the dangers of mediatization, the absence of meaningful regulation of much digital media with global reach and effect, but also to the normative and systemic value of protecting and fostering informed publics. I have approached questions of media regulation from the perspective of international law, which is controversial for some. It is true that media law’s origins remain largely domestic, but I have also sketched out the important ways in which international law frameworks have shaped and governed media and global communications. The dominant perspective here remains a freedom of expression-focused

Conclusion  161 human rights approach, but this book has also examined further contexts including international trade law, international criminal law, international humanitarian law, telecommunications, internet governance and developing fields such as platform and data governance. One important theme which has emerged is the role to be played by human rights frameworks and their resilience and suitability for addressing media-related questions. But those frameworks have also tended to emphasise media freedom over what I argue should be the underlying normative goal for international media regulation – informed publics. This emphasis, in current frameworks, connects with the broader privatisation of international life which communicative capitalism entails. In earlier chapters I examined a range of existing international frameworks for media regulation, analysing them in terms of three interconnected, yet distinct, models. A free publics regulatory model involving human rights and trade has led to increased monopoly and concentration of private ownership. It has failed to account for media power and its own connection to the abuse of rights. An endangered publics model (involving human rights, but also international criminal law and international humanitarian law) operates in tension with media freedom, resulting in both a passive account of publics and their manipulability, while absolving media of their responsibilities in relation to propaganda, violence and structural inequality. A digital publics model (involving telecommunications and expanding to include internet, data and platform governance) draws upon these earlier approaches, but is notable for the absence of international law. Innovation and free technology are given preference in place of digital media governance, propagating the mythology that big tech can regulate itself and that the harms it generates are secondary to its many benefits. In response to the contemporary mood for their fuller regulation, digital media platforms co-opt international legal norms such as human rights as ‘design principles’ or values to complement their broader corporate vision and reputational strategies. All three models of international media law display an overly protective approach to the media. This is based in an understanding of the significant social and political role played by the media, but all too often the media are protected at the expense of the publics they are said to inform and serve. The underlying goal of informed publics must guide the further development of international media law. This is not to deny the many limitations of international law, or to assert that we can magic a perfect system for digital media governance and paper over the political challenges inherent in a state-based framework which is increasingly fragile. Nor am I suggesting that a utopian or liberal internationalist solution to the problems of generating international community can be found. Such idealism can be as dangerous as the technological determinism that accompanies contemporary faith in digital media platforms and data-driven governance. International law can be understood as a formal system of rules and norms, offering a juridical framework for organisation, co-ordination and dispute settlement,

162  Conclusion but it is also a social practice with significant implications for how we collectively imagine and govern the world. If it is to continue to serve its publics, we need to take better account of this dynamism, appreciating its limitations without foreclosing its possibilities. The relationship between international law and the media also reveals much about the communicative character of international law and its role in the shaping and control of information flows. And yet the media remains an under-analysed topic within international legal scholarship. This book directly challenges the view that international law should play no part in the regulation of the media and that mediatization is irrelevant to understanding the shape of the international system. A further dimension of this study relates to debates regarding the constitution of international community, the shaping of public opinion and the formation of global publics for international law. The ambivalence here has to do not with the media, but with international law in an era of mediatization. Is the international community a pre-existent reality, or do international law and its institutions contribute to conjuring it up through media techniques of publicity and spectacle? Such a perspective can help to bring into view the ways in which international law may not just be responding to, but may in fact also partly constitute, the world and its problems. This in turn underlines the importance of the theme of visibility and invisibility with regards to the effects of the media and international law. If international law is (among other things) a mechanism of visibility and invisibility, then questions arise about the responsibility for inclusion and exclusion and, more generally, about the ethical dimensions of a mediatized international law. As well as underscoring the need for media regulation, informed publics offer international law an inclusive, plural vision of international society. This contrasts with the increasingly commodified, advertising and surveillance-focused models of community offered by dominant digital media platforms. Communicative capitalism is a poor substitute for global governance and order. International law resists and yet is shaped by processes of publicity. Just as there is no ideal condition for media freedom outside of the reality of everyday media practices, there can be no illusion that international law can remain pure and positive, disconnected from politics and its mediatization. Rather than repetition of normative claims in the name of expressive freedom or positive systemic purity, what is needed is greater appreciation of the complexity of media and international law’s imbrication. The relationship between the media and international law is characterised by both co-dependence and conflict. In the first place, international law needs the media to make itself known and to reach its many constituencies. Likewise, the media needs international law to provide a framework for legitimisation and interpretation of facts, as a subject for investigation and elaboration, and as a discourse for self-protection via frameworks such as human rights law. Both disciplines build each other up and yet also operate in an uneasy conjunction, as competing systems of knowledge production and authority.

Conclusion  163 The turn to publicity leaves international law more rather than less vulnerable to ongoing critiques regarding substance, process, legitimacy and participation. What is required is access to, and the protection of, a diversity of information flows, along with the development of effective forms of international regulation of digital media. The ‘disruptive innovation’ of communicative capitalism is weakening the social character of international law, placing at risk the underlying goal of connected, active and informed publics. At stake is the emergence of a more diverse, dynamic and plural conception of international society.

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178

INDEX Abu Ghraib, torture at  136, 137, 141 abuse of rights  64–5, 67 accountability  20, 30, 31 institutional publicity  117–18 media  37, 42n52 Africa African Charter  41, 67 African Commission on Human and People’s Rights  41 African Union  134 Declaration of Principles on Freedom of Expression  52–3 images of  145 stereotypes about Africans  75 see also Rwanda Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)  55 Al Jazeera television network  81–2 Alexander, Amanda  150 algorithms  26, 29, 30–1, 87, 111, 139, 149 Al-Jazeera  5 Alphabet Inc  5 Al-Qaida  85 alternative media  9 Alvarez, Alejandro  24 American Convention on Human Rights (ACHR)  43, 67 American Journal of International Law  1, 21 American Society of International Law (ASIL)  21, 22 Amnesty International  148 Anderson, Benedict  17 anti-Semitism  66, 67, 72 Arab Spring  29, 100, 132 Arendt, Hannah  129, 130 Arsenault, Amelia  7–8 Association for Progressive Communications (APC)  98 atrocity crimes  77, 78, 79, 130, 145 attention economy  152 audio-visual services  56, 58, 61 authoritarianism  9, 30, 87, 100, 102, 131, 135

Barayagwiza, Jean-Bosco  73, 75, 76 Barendt, Eric  36n6 Barlow, John Perry  93–4 Bayly, CA  22 BBC  5 Belgrade, NATO targeting of radio and television station (RTS)  82–3 Bensouda, Fatou  130 Benvenisti, Eyal  30, 31 Berne Convention for the Protection of Literary and Artistic Works  55 big data  30, 31 Bin Laden, Usama  85 Bismarck, Otto von  21 Blanning, TCW  17 blogs  9, 124, 127, 133, 153 Boochani, Behrooz  147 Braithwaite, John  93 Brandeis, Louis D  49–50 Brdjanin and Talic case  46–7 Brendenbach, Jonas  120 Brierly, JL  2 Bromley, Michael  143, 144n26 Brown, Philip Marshall  22–3 Burri, Nina  80–1 business and human rights framework  42, 54, 78, 96, 109 platform governance  111, 114 Rabat Plan of Action  65–6 Butler, Judith  139, 141, 142, 143 Callamard, Agnès  41–2 Cambridge Analytica scandal (2018)  29, 90, 110, 112, 136, 156 Canada – Periodicals case  56–7 capitalism communicative see communicative capitalism platform  3, 89 surveillance  110 Carr, EH  23–4 Castells, Manuel  7–8 CCTV  5

180  Index censorship  6, 12, 36, 37, 42, 58, 83, 101 China  5, 57, 58–9, 94, 97, 111 online/internet  94, 97, 100, 101, 102, 111 state  5, 40, 41, 83, 100 Charlie Hebdo (French satirical publication)  68 Charter of Fundamental Rights of the European Union  60, 70, 84, 105–6, 108 Chen, Lung-chu, Human Rights and World Public Order  28 China censorship  5, 57, 58–9, 94, 97, 111 international trade law  57–9 and internet freedom  102 internet giants  113 platform governance  110–11 state control of media  5, 40 Chouliaraki, Lilie  146–7 Christchurch massacre (2019)  86–7 citizen media  9 civil society, transnational  16–17 civilians, protection in armed conflict  79 clicktivism  133 Clinton, Bill  84, 100, 101 CNN  5, 141 Coalition to Defend the Republic (CDR) party, Rwanda  74, 76 Cohen, Stanley  150 Cold War  1, 6, 32, 73, 93, 157 debates  11, 26–8, 97, 120 digital  100 Comcast  5 Committee on the Elimination of Racial Discrimination (UN)  70 Committee to Protect Journalists  40 communicative capitalism  3, 13, 117, 162 corporate ideology and ambition  152 and humanitarianism  149–55 computational propaganda  12, 28, 87, 88 contempt, and protection of sources  45–7 Convention on the Prevention of Terrorism  86 copyright protection  55 Corfu Channel case  24 Couldry, Nick  4, 6, 8, 11, 16, 19, 150 Council of Europe Additional Protocol to its Convention on Cybercrime  70 Convention on Cybercrime  86 Convention on the Prevention of Terrorism  86

counterculture (1960s)  93 counterpublics  19 counter-terrorism measures  48 COVID-19 pandemic  30, 32, 113, 155, 160 Crawford, Emily  80 Crawford, James  30 Crawford, Kate  7 crime access to crime scene  42 atrocity crimes  77, 78, 79, 130, 145 and conflict  12, 72 crimes against humanity  72 and free speech  66 genocide see genocide, incitement to commit hate speech see hate speech incitement see incitement international  72, 73, 75, 77, 79, 149 state interference  49 temporality of  76 war crimes see war crimes against women  74n60 see also international criminal law Curran, James  22n55 customary international law  64 cyberlaw  96–7 cybersecurity  85–6, 101, 102 cyberspace  85 Danish cartoon controversy  68 d’Arcy, Jean  27 data protection  12, 52, 56, 86, 135 digital publics  91, 98, 103, 106, 108–10, 115 in the EU  104–7 Directive 95/46/EC  107–8 General Data Protection Regulation (GDPR)  107, 109 datafication  19 Davies, Kayt  80 Dean, Jodi  2–3, 116, 139, 153, 154 Declaration on the Rights of Indigenous Peoples (UN)  70 defamation laws  43–5 Delfi AS v Estonia case  69 Delimatsis, Panagiotis  124 democracy  6, 14, 17 endangering  88, 110 and freedom of expression  35, 36, 39 press freedom  46, 48 liberal  20 media watchdog role  40

Index  181 participatory  18 and publicity  116 representative  20, 53 strengthening  75 weakening  116 DeNardis, Laura  95n24, 99 Department of Global Communications (DGC), UN,  120–1 Department of Public Information (DPI), UN, rebranding as Department of Global Communications (DGC)  120–1 Der Stürmer (anti-Semitic paper)  72 digital media  2, 7, 9, 147 absence of global governance  88 challenges for  142 cybersecurity  85–6, 101, 102 freedom of expression  100 globalised  5, 6 incitement and hate speech  68, 71 industry  115 international legal frameworks  12 publicity functions  9 social media platforms  3, 6 transformation  5–6 see also data protection; internet; media; platform governance; traditional media digital publics  90–114 data governance  104–10 data protection  91, 98, 103, 106, 108–10, 115 EU-US Privacy Shield Agreement  108 human rights  99–104 internet governance  93–9 platform governance  110–14 telecommunications  91–3 see also data protection; digital media; information and communication technologies (ICTs); internet digital witnessing  83 Drahos, Peter  93 Eichmann, Adolf  129 elections, media’s role in manipulating  29 Electronic Freedom Foundation (EFF)  98 endangered publics  63–89, 90–1 ‘bad media’ image  63 incitement, hate speech and propaganda  64–72 media power  77 European Commission  70, 107

European Convention on Human Rights (ECHR) abuse of rights  67 contempt  45 freedom of expression  39–40 licensing  42 mass surveillance  103 national security  47 privacy  49, 103 European Court of Human Rights (ECtHR)  40, 48, 69, 83 defamation laws  44, 45 privacy  50–1 European Court of Justice (CJEU)  60, 106, 107, 108 EU Audio Visual Media Services Directive  70 EU General Data Protection Regulation (GDPR)  107 EU-US Privacy Shield Agreement  108 Facebook  3, 6, 10, 29, 127, 149, 151 Cambridge Analytica scandal (2018)  29, 90, 110, 112 computational propaganda  87 domination of internet-based communication  77 Facebook Ireland, transfer of data to the US  107 Myanmar, role in  63, 78, 88 Oversight Board  113 platform governance  110 social infrastructure  156 Fahmy, Mohamed  41 ‘fake news’  9, 26, 29, 77, 87, 149 Faurisson v France case  66–7 Fleming, Melissa  122 Flickr  127 Focarelli, Carlo  16–17 fragmentation  6, 15, 29, 31, 139 free publics  10, 62, 63, 75, 89, 90–1, 94, 161 freedom of expression  37, 55 and human rights  34 international media law  61 international trade law  55, 61 internet governance  101 media pluralism  53 see also freedom of expression freedom of expression  6, 12, 13, 34–62, 160 and administration of justice  45 contempt and protection of sources  45–7 defamation and insult laws  43–5

182  Index and democracy  35, 36, 39, 48 digital media  100 diversity and pluralism  34 in the ECHR  39–40 and hate speech  65–7, 75 in the ICCPR  38 and incitement, prohibition of  65 Inter-American Declaration of Principles on Freedom of Expression  47, 52 and international regulation of the media  38 justification for restrictions on  49, 66 licensing  42–3 national security  47–9 online  100 and privacy  49–52 significance in media regulation  61 Turkey  48 in the UDHR  38 see also free publics; media freedom freedom of the press  35, 37 contempt limiting  45 prior restraint  43 proportionality principle  46 protection of sources  46 war correspondents, protection of  46–7 see also press Freeman, Barbara M  146 Friedmann, Wolfgang  91n2 The Changing Structure of International Law  26 Garland, David  24–5 General Agreement on Tariffs and Trade (GATT)  55–9 General Agreement on Trade in Services (GATS)  55–9, 109 Annex on Telecommunications  59–60 Fourth Protocol  59 Geneva Conventions, First Protocol (1977)  79 genocide, incitement to commit  12, 63, 73–6 direct and pubic incitement  76 overturning of charges  75–6 speech acts and subsequent violence  76 see also freedom of expression; hate speech; incitement; Media Genocide case; Streicher, Julius Gillespie, Tarleton  114 global financial crisis  30 Global Network Initiative (GNI)  99 ‘global networked commons’  101

Global New Light of Myanmar newspaper  78 Global North and South  7, 27, 144n26 global publics  12–17, 137 globalisation  1, 5, 35, 93, 155, 160 media/digital media  6, 9 Golder, Ben  144n29 Goldsmith, Jack  101, 102 Goodwin v United Kingdom case  46 Google  3, 10, 107, 110, 113, 149, 151 Google Spain case  106, 107 governance data  104–10 global  88, 157 good  35 international  14, 32 internet  93–9 platform  104–5, 110–14 government access to personal information and data  52 First Amendment-style suspicion of  37 Gregg, Melissa  7 Gregory, Sam  134 Greste, Peter  41, 42 Habermas, Jürgen, The Structural Transformation of the Public Sphere  17, 18 Haider, Jörg  44 hate speech  63, 64–72 abuse of rights  64–5, 67 Committee on the Elimination of Racial Discrimination (UN)  70 context  67 digital media and online hate  66n12, 68, 71, 77, 78 distinguished from direct incitement to commit genocide  76 and freedom of expression  65–7, 75 Holocaust denial  66 intermediary responsibility  69 national regulation  67–8 as political  75 prohibition  65, 69–70 Rabat Plan of Action  65–6 responsible reporting versus media coverage  69 US-style approach to  66 see also incitement; propaganda Henriksen, Anders  85–6 Hepp, Andreas  8, 19 Herzer, Martin  120 Hesford, Wendy  129, 135

Index  183 Higgins, A Pearce  1, 22, 91 Hopgood, Stephen  151 Howard, Philip  87, 88 Hudson, Manley  23, 118 Hughes, Kirsty  50 human rights  7, 11, 67, 78, 88, 89, 131 abuse of  64–5, 67 and freedom of expression see freedom of expression hate speech  6–7 and the internet  99–104 media freedom  37, 40, 41, 44, 54 mediatization  135–6 NGOs  121, 149, 152 publicity  131–7, 151 ‘right to communicate’  27, 28 and witnessing  13, 131–7 women  143, 146 see also European Convention on Human Rights (ECHR); freedom of expression; Human Rights Committee (UN); Inter-American Court of Human Rights; International Covenant on Civil and Political Rights (ICCPR); Office of the United Nations High Commissioner for Human Rights; Universal Declaration of Human Rights (UDHR) Human Rights Committee (UN) General Comment 11  65 General Comment 34  36, 47–8, 53, 99 on hate speech and freedom of expression  66–7 Human Rights Watch  148 humanitarianism  12, 145, 146, 148 and communicative capitalism  149–55 dominance within international law  150 ‘selfie’  151n71 see also international humanitarian law Humphreys, Stephen  95, 104 Hutus, Rwanda  73, 74 ICANN see Internet Corporation for Assigned Names and Numbers (ICANN) ICCPR see International Covenant on Civil and Political Rights (ICCPR) ICJ see International Court of Justice (ICJ) ICTR see International Criminal Tribunal for Rwanda (ICTR) IFEX  40

incitement  63, 64–72 abuse of rights  64–5, 67 Charlie Hebdo (French satirical publication)  68 Danish cartoon controversy  68 digital media  68, 71 direct and public, to genocide  76 limits to free expression  68 post-World War Two efforts to punish  73 prohibition  65, 69–70 Rabat Plan of Action  65–6 regional instruments  67–8 see also genocide, incitement to commit; hate speech; propaganda information Cold War debates  11, 26–8 information intervention  83–4 manipulation of  12, 87 media function in relation to  16, 17, 132 information and communication technologies (ICTs)  85 information society  32–3 informed publics  12, 14–33 concepts  15–19 displacing  61 engaging  155–7 formation  16 goal  160 and international law  2–3 Instagram  127 Institute of Electrical and Electronics Engineers (IEEE)  99 institutional publicity  117–26 insult laws  43–5 intellectual property rights  55 Inter-American Court of Human Rights  43, 44 Inter-American Declaration of Principles on Freedom of Expression  47, 52, 53 International Committee of the Red Cross  80 international community  13, 20, 64, 70, 133, 162 critique  18, 23 and informed publics  16, 17 and ‘internet community’  100 publicity, critique  145, 162 unified  157 and war  46–7 International Convention on the Elimination of All Forms of Racial Discrimination  69–70

184  Index International Court of Justice (ICJ)  12, 117 Statute  118 International Covenant on Civil and Political Rights (ICCPR) accusations of violation  66–7 freedom of expression  36, 38, 39 internet regulation  99 national security  47–8 privacy  49 propaganda, prohibitions  65 International Criminal Court (ICC)  126, 127, 133, 134, 143 international criminal law  71–9, 90 incitement and hate speech  72–9 publicity  126–30 trials  128 see also crime; war crimes International Criminal Tribunal for Rwanda (ICTR)  73–6, 127, 128 International Criminal Tribunal for the Former Yugoslavia (ICTY)  82, 127 international humanitarian law  63, 79–83, 88, 90 international law abuse of rights as a general principle  64 communicative character  13, 158 communicative infrastructure  8–9 crisis and fragmentation  15, 31 customary  64 and engagement of informed publics  155–7 humanitarianism  150 imbrication with media  3, 88, 137, 158 digital media  114 engagement of informed publics  155–7 interdependence of media and international law  10–13 publicity  116 role of media  2, 13 and informed publics  2–3 and mediatization  2, 7, 9, 13, 15, 115, 116, 139, 140, 148, 158, 162 modes  3 popular understanding  2 post-colonial critique of Eurocentric traditions  19 as propaganda  1 and public opinion  20–6 role of publics during development of  21 state-centrism of  18 see also international criminal law; international humanitarian law; international trade law

International Law Association (ILA)  22 international order  15, 23, 30, 38 international ordering and thinking  8, 24 International Telecommunication Union (ITU)  7, 12, 60, 96, 117, 125 Constitution, latest revision  85 digital publics  92, 93 International Telegraphic Convention  91, 92 international trade law  54–61, 90 audio-visual services  56, 58, 61 Canada  56–7 China  57–9 most-favoured-nation (MFN) treatment  56 national treatment  56 non-discrimination principle  55–6 WTO agreements  55 internet cybersecurity  85–6, 101, 102 freedom  100–2, 111 infrastructure  7, 8, 95, 101, 115 lack of direct intervention of international law institutions  94 privacy, threats to  51 public and private regulation  94 technical protocols  95 see also data protection; digital media; digital publics; information and communication technologies (ICTs); internet governance; ‘internet of things’ Internet Architecture Board (IAB)  98 internet community  100 Internet Corporation for Assigned Names and Numbers (ICANN)  96, 98, 117 strategic plan for  2021–2025 124–5 Internet Engineering Task Force (IETF)  98 internet governance  93–9 censorship  94, 97, 100, 102, 111 free publics conception  101 human rights approach  102 see also data governance; digital media; digital publics; information and communication technologies (ICTs); internet Internet Governance Forum (IGF)  97 ‘internet of things’  6 Internet Society (ISOC)  98 inter-war period  23 Invisible Children (NGO)  132, 133, 134

Index  185 iPhone  7 Iraq War  81, 82, 139, 140, 141 ITU see International Telecommunication Union (ITU) Jackson, Robert H  128 Jaconelli, Joseph  119 Jennings, Robert  84 Jersild v Denmark case  68 Johns, Fleur  19n26 journalism  4, 6 Committee to Protect Journalists  40 dangers to journalists  42, 79 defining boundaries of  42 and human rights organisations  148 news-generative  53 sexist nature of reporting  145–6 targeting for criticising the actions of governments  41 UN Plan of Action on the Safety of Journalists and the Issue of Impunity  81 watchdog role  9 see also media; press; reporting Jumbert, Maria Gabrielson  154–5 Kangura (extremist newspaper), Rwanda  73, 74, 76 Kant, Immanuel  21 Karlsrud, John  154–5 Kaufmann, Mareile  154–5 Kaye, David  66, 71, 78, 111–12 Kennedy, David  16 Khashoggi, Jamal (unlawful killing)  41 Kittichaisaree, Kriangsak  106–7 Kony, Joseph  132, 133, 134 ‘Kony 2012’ (video)  132–3, 134 Koskenniemi, Martti  20, 21 Kuner, Christopher  106–7 La Rue, Frank  101, 111 Landauer, Carl  22 Lang, Andrew  59 Lasswell, Harold D, Human Rights and World Public Order  28 Lauterpacht, Hersch  1, 25, 64, 72, 118 League of Nations  23, 84 Lessig, Lawrence  60n171 liberal internationalism  15, 30, 31, 90, 101, 109, 156 liberty of the press  35 licensing  42–3

Lord’s Resistance Army (LRA)  132, 134 Lynskey, Orla  103, 104, 106 McChesney, Robert W  20 McDougal, Myres S, Human Rights and World Public Order  28 McLagan, Meg  148 McPherson, Ella  142, 152 Malkki, Liisa  146 Marcuse, Herbert  25n78 Marks, Susan  2 Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement)  55 Martens clause  21 Marwick, Alice  139, 153, 154 Status Update  152 mass media  5, 26 media  4, 15–17, 26, 29, 35, 36, 50, 62, 77 accountability  37, 42n52 ‘attack dog’ potential in armed conflict  81, 88 bias and discrimination in representations  145–6, 147 censorship  5, 12, 41 classical liberal approach to  35, 36 Cold War debates  11, 26–8 conceptual analysis  4, 42 contemporary challenges  28–32 digital see digital media freedom of expression, public function with respect to  50 globalisation  5, 6 imbrication with international law  3, 88, 137, 158 digital media  114 engagement of informed publics  155–7 interdependence of media and international law  10–13 publicity  116 role of media  2, 13 information-imparting function  16, 17, 132 international regulation  11–12 licensing schemes and Inter-American system  43 manipulation by  21, 29 mass media  5, 26 and mediatization  3–10 pluralism see media pluralism special status, advocacy for  37, 42 state attacks on  41–2

186  Index state control of  5, 78 traditional see traditional media transnational media corporations  5, 71, 105, 155 watchdog role  13, 32, 79, 81, 88 free publics  35, 40, 44, 46, 51, 61 journalism  9 see also journalism; media framing; media freedom; media power media audiences, algorithmic manipulation of  26, 29 media framing  139 media freedom and freedom of expression  36, 37 harmful speech, defending  37 limits to  40–1, 53, 62 United States  61 Media Genocide case  12, 63, 73–4 appeal judgment  75–7 temporality of crimes  76 media pluralism  52–4 media power  7–8, 9, 12, 16 abuses of  1–2, 64 concentration of  26 and endangering publics  77, 84 institutional  37 internet giants  113, 114 warfare  83–4 mediatization  138, 147 commodified forms  131 and conflict  140–3 dangers of  3, 8–9, 31, 139, 160 deep  19 enabling new forms of association and participation  18–19 function of  8, 115 human rights  131, 135–6 humanitarianism  154 and informed publics  18–19 and international law  2, 9, 13, 15, 115, 116, 139, 140, 148, 158, 162 and media  3–10 naming and shaming  131 of politics  150 processes  158, 160 meta process  7 and publicity  12, 117, 121, 150, 153 of suffering, torture or violence  83, 136, 145 trials  13, 129 of the UN  121 #metoo movement  132 Metzl, Jamie  84

Mill, John Stuart  35, 36 misinformation and propaganda  77 Mohamed, Baher  41 Mokrosinska, Dorota  50n101, 52 monopolies  7–10, 12, 17, 26, 34, 52, 60, 151, 161 broadcasting  52, 92 digital media platforms  3, 34, 97, 105, 115, 139, 155, 158 Facebook  110, 112 humanitarianism  154, 155 and manipulation  15, 28 power of  8, 9 private  139 regulation  12, 54 state  52, 53, 92 transnational media corporations  105, 155 Morgenthau, Hans  24 Morozov, Evgeny  101 most-favoured-nation (MFN) treatment  56 Moyn, Samuel  135, 150, 152 multilateralism  30 Muslims, Danish Cartoon controversy  68 Myanmar Facebook, role of  63, 78, 88 Muslim Rohingya community, organised persecution  77, 78 Nahimana, Ferdinand  73, 75, 76 nation state, and rise of media  17 national security  47–9, 83 nationalism  30 NATO bombing of Belgrade radio and television service station (RTS), 1999  82–3 Naughton, John  94 Nazi war criminals, efforts to prosecute  72, 129 neoliberal individualism  151 networked transnational public, rejection of  30 New Haven school  28 Ngeze, Hassan  73, 74, 75, 76 NGOs  11, 96, 117, 123, 136, 148 human rights  121, 149, 152 humanitarian  150 Invisible Children  132, 133, 134 mediated advocacy  150, 151 Witness  121, 134 Nicolson, Harold  21 NIEO (New International Economic Order)  27

Index  187 non-discrimination principle  55–6 non-governmental organisations see NGOs Nordenstreng, Kaarle  36n7 Nuremberg, International Military Tribunal  25, 126, 128, 129 trial of Julius Streicher  72, 73, 75 NWICO (New World Information and Communication Order)  27, 28, 96, 120 Ocampo, Luis Moreno  133 Occupy movement  29 Office of the United Nations High Commissioner for Human Rights  65 online hate speech  66n12, 71, 77, 78 see also hate speech; incitement open justice  119 Orford, Anne  16, 29–30, 31, 145, 146 Oster, Jan  66 Pact of San José see American Convention on Human Rights (ACHR) Paris Convention for the Protection of Industrial Property  55 Parker, James  75 patent protection  55 Pentagon  93 Permanent Court of International Justice (PCIJ)  118 Pillay, Navanethem  65 PKK separatist organisation, Turkey  48 platform capitalism  3, 89 platform governance  104–5, 110–14 platform humanitarianism  151 pluralism, media  52–4 populism  20, 30 press liberty of see freedom of the press role in formation of public opinion  36 self-regulation  36 watchdog role  44, 46 World Press Freedom Day  81 press barons  22 Princess Caroline of Monaco, privacy rights  50–1 PRISM surveillance program  108 privacy  49–52 celebrities  50–1 children  122 collective  103 and data protection  106

definitions  49–50 EU protection  108 justifiable limitation on freedom of expression  49 and surveillance  51, 52 UN Special Rapporteur  49 propaganda  9, 29, 63, 64–72 computational  12, 28, 87, 88 history  21 international law as  1 prohibition  69–70 rise of  21 for war  81 proportionality principle  46 public opinion  11, 16, 17, 75, 118 attitudes to  21–2 and control  28, 32, 40 debates  14, 15, 19 diversity of  36 history  20–1 and human rights  25 ill-informed  22 international  22, 24 and International Criminal Court (ICC)  126 and international law  20–6, 31, 32 humanitarian  150 manipulation of  28 national  24n71 New Haven school  28 press role in formation  36 rise of in international law  26, 31, 32 shaping  1, 162 public relations  13, 112, 116, 134, 137 institutional publicity  121–2 and UN  120–2 and WTO  123–4 public sphere  13, 18n21, 63, 115, 141 traditional  17, 18, 32 transition to emerging global digital media  15, 18, 90, 97, 153, 157 publicity  9, 12–13, 14, 18, 116–38 concerns  2–3 critique  139–59 human rights  131–7, 151 institutional  117–26 international criminal law  126–30 international legal role  25 and mediatization  12, 13, 117, 121, 150, 153 as open justice  119 ‘outreach’  117 and United Nations  120–3

188  Index visibility and invisibility  143–9 and the WTO  123–4 publics role of during development of international law  21 as social imaginaries  19 see also digital publics; endangered publics; free publics; global publics; informed publics Qiu, Jack Linchuan  7 Rabat Plan of Action, incitement and hate speech  65–6 radio communications  84, 92 see also RTLM (Radio Télévision Libre des Mille Collines), Rwandan radio station rape, Rwanda  74 refugees  122, 140 Syrian conflict  146–7 regulation of media absence at the WTO  34 and censorship  10–11 conflict  83 digital  64, 97, 104 domestic  52n115 hate speech  67–8 human rights approaches  61, 157 and informed publics  162 international  10, 13, 27, 37, 38, 61, 68, 139, 160, 161 and digital media  90, 163 multilateral  12 public  88, 97, 116 satellites  93 of social media  78 telecommunications  12, 92 prohibitive dimensions  88 self-regulation of press  36 trade law  60 transnational  60n172 see also censorship, state media reporting  68, 82, 136, 146, 148n55 court  119 of facts versus details of private life  51 intrusive  50, 102 news, based on interviews  69n31 responsible  69 see also journalism; press reputation, protection  44 right to communicate  27–8

Rodriguez, Clemencia  16 Roessler, Beate  50n101, 52 Rolin, Henri  24 Roosevelt, Franklin D  101 Root, Elihu  1, 21, 22 Ross v Canada case  67 Rowbottom, Jacob  5–6, 37 RTLM (Radio Télévision Libre des Mille Collines), Rwandan radio station  73, 74–5, 76 rule of law  35, 71 Russia, state control of media  40, 94 Rwanda, role of media in genocide  77, 88 Coalition to Defend the Republic (CDR) party  74, 76 International Criminal Tribunal for Rwanda (ICTR)  73 Media Genocide case  12, 63, 73–4 appeal judgment  75–7 temporality of crimes  76 Rwandan Patriotic Front (RPF)  73, 74 see also genocide, incitement to commit; hate speech; incitement; Kangura (extremist newspaper), Rwanda; Ngeze, Hassan; RTLM (Radio Télévision Libre des Mille Collines), Rwandan radio station safe harbour provisions  107, 108, 111 Sandvik, Kristin Bergtora  154–5 Schrems, Max  107, 108, 109 Schwöbel, Christine  126 Schwöbel-Patel, Christine  130, 134, 151 self-representation, mediated  147 Silicon Valley culture, US  66, 90, 100, 102, 110, 151, 152 Simon, Joel  37 Simpson, Gerry  128 smart phones  6, 7 Snowden, Edward  90, 96, 102 social media platforms  3, 6, 9, 29, 149 and hope  142 international regulation  78 role in atrocity crimes  77, 78, 79 see also data protection; digital media; Facebook; Google; internet; internet governance; Twitter; Weibo (social media platform) Sontag, Susan  129 sources, protecting  45–7 Stolic, Tijana  146–7 Stover, Eric  128, 129

Index  189 Streicher, Julius  72, 73, 75 Sunday Times v United Kingdom case  45 surveillance  51, 52, 103, 111 PRISM program  108 surveillance capitalism  110 Syrian conflict  31, 83, 132, 142 refugee crisis  146–7 Taliban  85 Tallgren, Immi  16, 126 Tallinn Manual  86 Taylor, Telford  75, 126, 128, 129 technological change and disruption  1, 3, 6, 32, 95n24, 158 contemporary challenges  29–30 digital publics  107, 115 publicity  126, 143 telecommunications  91–3 terrorism concerns  47–9 Convention on the Prevention of Terrorism  86 ‘War on Terror’  85 Thompson, John  5 trade law see international trade law traditional media  3, 4, 29, 32, 56, 78, 90 challenges for  142 critique of publicity  140, 142, 143, 157 law  90, 105 trust issues  29, 143 see also digital media transnational media corporations  5, 71, 105, 155 treaties and public opinion  20 Trentmann, Frank  25n74 Trump, Donald  9, 31 Tumblr  127 Tutsis, genocide of in Rwanda  73–4 Twitter  6, 9, 87, 127, 151 Tworek, Heidi  120 UN see United Nations UN GGE process (Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security)  85–6 UNESCO (United Nations Educational, Scientific and Cultural Organization)  28, 81, 96 Mass Media Declaration  27 right to communicate  27–8

UNHCR (United Nations High Commissioner for Refugees)  122 United Kingdom Brexit referendum  29 contempt laws  46 freedom of expression and administration of justice  45 United Nations  12, 23, 117 Declaration on the Rights of Indigenous Peoples  70 Department of Global Communications (DGC)  120 General Assembly  27, 81, 85, 102–3 Committee on Information  120 Human Rights Council  81 Human Rights Committee see Human Rights Committee (UN) ‘information intervention unit’, proposals for  84 mediatization  121 Office of the United Nations High Commissioner for Human Rights  65 peace-keeping and monitoring  122 Plan of Action on the Safety of Journalists and the Issue of Impunity  81 and publicity  120–3 Security Council  80, 84, 85, 143 Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression  47 Special Rapporteur on the Right to Privacy  49 Special Rapporteurs see La Rue, Frank see also Kaye, David United States cyberlaw  96–7 First Amendment tradition  37, 39, 78, 102 and hate speech  66 liberal internationalism  15 mass surveillance  96 media freedom  61 missile strikes in Syria (2017)  31 safe harbour provisions  107, 108, 111 Silicon Valley culture  66, 90, 100, 102, 110, 151, 152 Universal Declaration of Human Rights (UDHR) freedom of expression  37, 38 privacy  49 public opinion  25

190  Index universalism  16 Uruguay Round  59 ‘Visible Children’ (blog)  133 von Hannover case  45 Voon, Tania  59 war crimes  12, 72, 81 humanitarian outrages  132 Rome Statute  81 trials  47, 117, 126, 128 and ‘show trials’  128 ‘War on Terror’  85 Warner, Michael  18n21, 19 Warren, Samuel D  49–50 wars ‘attack dog’ potential of media in armed conflict  81, 88 costs  141 crime and conflict  12, 72 media power  83–4 mediatization and conflict  140–3 propaganda  81 protection of correspondents  46–7 war crimes see war crimes see also Cold War; terrorism concerns; ‘War on Terror’; individual wars, such as Iraq War watchdog role of the media  13, 32, 79, 81, 88 free publics  35, 40, 44, 46, 51, 61 journalism  9 press  44, 46 Watts, Arthur  84 Weibo (social media platform)  6, 87, 149 Werner, Wouter  134

Westad, Odd Arne  26 Williams, Raymond  4 Wilson, Richard  75–6 Wilson, Woodrow, Fourteen Points  23 Witness (NGO)  121, 134 witnessing, and human rights  131–7 women crimes against  74n60 human rights  143, 146 Woolley, Samuel  87, 88 World Intellectual Property Organization (WIPO)  55 World Summit on the Information Society (WSIS)  92, 96, 97, 98, 99 ‘ICT for development’ agenda  125 World Trade Organization (WTO)  12, 34–5, 54, 59, 61, 62, 63 agreements  55, 109 Appellate Body  57 Dispute Settlement Body (DSB)  57 Doha round  60 and publicity  117, 123 World Wide Web Consortium (W3C)  98 World Wide Web Foundation  98 Wright, Quincy  25n77 WSIS see World Summit on the Information Society (WSIS) WTO see World Trade Organization (WTO) Xinhua (state media company)  5 YouTube  127, 132 Zittrain, Jonathan  96–7 Zuboff, Shoshana  110 Zuckerberg, Mark  112, 156